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1 

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4 

5 

6 

PARLIAMENTARY  GOVERJSTMENT 


IN  THE 


BRITISH  COLONIES. 


PARLIAMENTARY   GOVERNMENT 


IN    THE 


V/'^t 


<^-  J^>L. 


1-V 


BRITISH  COLONIES. 


BY 


ALPHEUS  TODD, 


LIBRARIAN  OF  PARLIAMENT,    CANADA;    AUTHOR    OP    "  PARLIAMENTARV 
GOVERNMEMT  I»   EHGLAND,"   ETC. 


o 


'■■■    .     yy^/     C.  /     -^      '       • 


-  *, 


BOSTON: 
LITTLE,   BROWN,   AND    COMPANY. 

1880. 


TO  VO^^    " 


^  rr  r  o  p  9 


Entered  according  to  Act  of  Congress,  in  the  year  1880,  by 

LITTLE,    BROWN,   AND   COMPANY, 

In  the  OfBce  of  the  Librarian  of  Congress,  at  Wasliington. 


University  Press: 
John  Wilson  and  Son,  Cambridge. 


J  Aw 


TO 


THE    EAPwL    or    DUFFERIN, 

WHO,   FROM   HIS  FIRMNESS  IN  UPHOLDING  THE   LAWFUL  AUTHORITY  OF  THE 

CPOWN,   AND   HIS   UNCEASING   EFFORTS   TO   PROMOTE  THE 

WELFARE  OF  THE   PEOPLE,   DURING 

HIS  ADMINISTRATION  IN  CANADA, 

WAS  AN   EXAMPLE  TO  ALL 

CONSTITUTIONAL  GOVERNORS, 

THIS  VOLUME  IS   INSCRIBED. 


PREFACE. 


In  presenting  this  volume  to  the  public,  I  have  been 
enabled  to  complete  a  design  which  I  have  long  had  in 
contemplation,  and  which  was  partly  fulfilled  when, 
about  thirteen  years  ago,  I  published  my  treatise  on 
Parliamentary  Government  in  England.  In  the  pre- 
face to  the  first  volume  of  that  work,  I  alluded  to  the 
obvious  want  of  some  manual  to  explain  the  operation 
of  "  parliamentary  government,"  in  furtherance  of  its 
application  to  colonial  institutions.  For  over  a  quar- 
ter of  a  century  my  own  researches  ha  I  been  largely 
directed  to  this  subject,  in  assisting  Cana  '"  statesmen 
in  giving  effect  to  the  grant  of  "respi  a  le  govern- 
ment," which  began  to  be  extended  to  the  colonies  of 
Great  Britain  when  it  was  introduced  into  Canada  in 
1841.  The  fruit  of  this  protracted  investigation  into  a 
hitherto  untrodden  field  was  embodied  in  the  publica- 
tion, in  1867  and  in  1869  respectively,  of  the  volumes 
above  mentioned,  which,  however  imperfectly,  supplied 
for  the  first  time  a  practical  exposition  of  "  the  laws, 
usages,  and  traditions  of  Parliamentary  Government." 

The  favour  with  which  this  attempt  was  received 
throughout  the  British  dominions,  and  the  desire  so 


Vlll 


PREFACE. 


frequently  expressed  for  additional  information  upon 
the  matter,  in  its  relation  to  the  British  colonies,  have 
induced  me  to  undertake  the  present  work. 

Desirous  of  avoiding  needless  repetitions,  I  have  re- 
ferred to  my  former  treatise  in  all  points  of  detail  or  of 
general  principle  wherein  colonial  practice  is  profes- 
sedly identical  with  that  of  the  mother  country,  and 
have  aimed  in  this  volume  to  treat  the  subject  from  a 
strictly  colonial  aspect.  This  has  compelled  me  to  cite, 
more  frequently  than  I  could  have  wished,  my  pre- 
vious publication,  as  it  still  remains  the  only  existing 
work  devoted  to  the  elucidation  of  this  important 
topic  from  a  practical  point  of  view. 

It  will  be  noticed  that  I  have  bestowed  much  atten- 
tion to  questions  which  have  arisen  in  the  working  of 
the  new  constitution  conferred  upon  the  British  North 
American  colonies  in  1867,  when  they  were  confede- 
rated into  the  Dominion  of  Canada.  Whilst  this  por- 
tion of  my  work  is  primarily  intended  for  Canadian 
use,  it  may  not  be  without  interest  or  value  in  other 
parts  of  the  empire,  in  anticipation  of  the  contemplated 
introduction  of  similar  institutions  in  South  Africa  and 
in  Australia. 

In  the  discussion  of  certain  weighty  precedents  which 
have  been  recently  determined  in  Canada  and  else- 
where, it  is  not  unlikely  that  the  opinions  I  have 
expressed  thereon  may  differ  from  those  entertained 
by  prominent  public  men  who  have  taken  part  in  their 
consideration  and  settlement.  I  would,  however,  ven- 
ture to  affirm,  that  I  have  approached  the  investigation 
of  these  "  burning  questions  "  in  an  impartial  spirit, 


PREFACE. 


t 
IX 


having  no  party  bias  or  inclinations,  and  seeking  only 
the  public  good.  If  my  criticisms  contribute,  in  any 
measure,  to  promote  that  end,  they  will  not  have  been 
in  vain. 

I  would  further  remark  that  in  this  —  as  in  my 
larger  work  —  I  have  directed  particular  attention  to 
the  political  functions  of  the  Crown,  which  are  too 
frequently  assumed  to  have  been  wholly  obliterated 
wherever  a  "  parliamentary  government "  has  been 
established.  In  combating  this  erroneous  idea,  I  have 
been  careful  to  claim  for  a  constitutional  governor 
nothing  in  excess  of  the  recognized  authority  and  voca- 
tion of  the  sovereign  whom  he  represents ;  while,  on 
the  other  hand,  I  have  endeavoured  to  point  out  the 
beneficial  effects  resulting  to  the  whole  community 
from  the  exercise  of  this  superintending  office,  within 
the  legitimate  lines  of  its  appropriate  position  in  the 
body-politic. 

Practical  statesmen  are  nsnally  well-informed  upon 
this  question.  But  much  ignorance  and  confusion  of 
thought  prevails  upon  it  amongst  all  classes  outside 
of  Parliament.  As  was  pertinently  observed  by  the 
Marquis  of  Hartington  (the  leader  of  the  Opposition  in 
the  House  of  Commons),  in  a  debate  during  the  last 
session  of  the  Imperial  Parliament,  "  There  is  no  doubt 
that  men  of  great  ability,  in  periodicals  of  much  politi- 
cal influence,  have  put  forward  doctrines  respecting 
the  relations  of  the  Executive  to  Parliament  and  the 
Crown,  which  are  altogether  contrary  to  the  doctrines 
which  have  been  generally  held  on  both  sides  of  this 
House  "  (Hansard's  Debates,  vol.  246,  p.  318). 


X  PREFACE. 

If,  then,  I  appear  to  have  laid  too  much  stress,  in 
this  vokime,  upon  those  attributes  and  functions  of  the 
Crown  which  are  lawfully  exercisable  by  a  governor 
under  "  responsible  government,"  it  is  because  I  am 
impressed  with  the  great  and  growing  necessity  for 
properly  instructing  the  public  mind  upon  a  vital  ques- 
tion of  practical  politics.  But,  as  tliis  treatise  is  in- 
tended to  be  expository  and  not  speculative,  I  have 
uniformly  refrained  from  extruding  'ndividual  opinions, 
and  have  stated  nothing  therein  that  is  not  capable  of 
proof  and  corroboration  from  the  public  utterancv^s  of 
English  statesmen  of  the  present  day,  irrespective 
of  party  divisions,  and  of  unquestionable  authority  in 
the  interpretation  of  our  constitutional  system. 

ALPHEUS  TODD. 

Library  of  Parliament,  Ottawa,  Canada, 
January  24,  1880. 


CONTPNTS. 


CHAPTER  I. 

Pace 
THE    SOVEREIGN   IN    RELATION   TO    TARLI^v  MENTARY   GO- 
VERNMENT IN  ENGLAND 1 


CHAPTER  II. 

THE  APPLICATION  OF  PARLIAMENTARY  GOVERNMENT    TO 
COLONIAL  INSTITUTIONS 24 


CHAPTER  III. 

HISTORICAL  ACCOUNT  OF  THE  INTRODUCTION  OF  PARLIA- 
MENTARY_GOVERNMENT  INTO  THE  COLONIES  OF  GREAT 
BRITAIN    " 54 


CHAPTER  IV. 

PRACTICAL  OPERATION  OF  PARLIAMENTARY  GOVERNMENT 
IN  THE  BRITISH  COLONIES. 

PART  I. 
Imperial  Dominion  exercisablk  over  Self-governing  Colonies  : 

a.  In  the  appointment  and  control  of  governors 76 

h.    In  matters  of  local  legislation 125 

c.  In  matters  of  internal  administration IGl 

d.  By  means  of  imperial  legislation 108 

e.  In  foreign  relations;  and  throngh  the  operation  of  treaties  192 
/.  By  appeals  to  the  courts  of  law  and  to  the  privy  council  .  218 
y.   By  the  grant  of  honours  and  titular  distinctions  in  the 

colonies 225 

h.    By  the  administration  of  the  prerogative  of  mercy   .     .     .  251 

i.     In  military  and  naval  matters 274 

J.    By  the  supremacy  of  the  Crown,  and  of  the  civil  power,  in 

ecclesiastical  matters 304 


Xii  CONTENTS. 


CHAPTER  IV. 
PART  II. 

Page 

Dominion  exercisable  over  subordinate  Provinces  of  the 

Empire  by  a  central  Colonial  Government     ....    319 

a.  Provincial  governments  in  New  Zealand 319 

h.   Provincial  governments  in  South  Africa 320 

c.   Provincial  governments  in  Canada 325 

1.  Dominion  control  in  matters  of  legislation      .     .     .  325 

2.  Dominion  control  over  the  Canadian  provinces  in  mat- 

ters of  administration 388 


CHAPTER  IV. 

PART  HI. 

Local  Self-government  in  the  Colonies 429 

a.  Colonial  rights  of  self-government  in  local  affairs,  and  the  posi- 

tion of  a  governor  in  relation  thereto 429 

b.  The  constitution  and  powers  of  Colonial  Parliaments,  and  the 

position  of  a  governor  in  relation  to  the  legislative  chambers    460 

c.  Discretion  of  the  sovereign  or  her  representative  in  granting  or 

refusing  to  ministers  a  dissolution  of  Parliament     ....    525 

CHAPTER  V. 

POSITION  AND    FUNCTIONS    OF  A    COLONIAL     GOVERNOR 

REVIEWED 574 


INDEX 595 


n 


PARLIAMENTARY  GOVERl^MENT 


IN   THE 


BRITISH   COLONIES. 


CHAPTER  I. 


THE  SOVEREIGN,  IN  RELATION  TO  PARLIAMENTARY  GOVERN- 
MENT IN  ENGLAND. 

TiTE  government  of  England  is  conducted  in  confor-  En<riish 
mitv  with  certain  traditional  maxims,  which  limit  and  ^i"'"","'^" 
regulate  the  exercise  of  all  political  powers  in  the  state,  niaxims. 
These  maxims  are,  for  the  most  part,  unwritten  and 
conventional.     They  have  never  been  declared  in  any 
formal  charter  or  statute,  but  have  developed,  in  the 
course  of  centuries,  side  by  side  with  the  written  law. 
They  embody  the  matured  experience   of  successive 
generations  of  statesmen  in  the  conduct  of  public  afHiirs, 
and  are  known  as  the  precepts  of  the  Constitution.'* 

Prominent  amongst  these  constitutional  maxims  is 
the  principle  that  "  the  king  can  do  no  wrong."  Rightly 
understood,  this  precept  means,  that  the  personal  actions 
of  the  sovereign,  not  being  acts  of  government,  are  not 
under  the  cognizance  of  the  law,  and  that  as  an  indivi- 
dual he  is  not  amenable  to  any  earthly  power  or  jurisdic- 
tion. He  is,  nevertheless,  in  subjection  to  God  and  to 
the  law.  For  the  law  controls  the  king,  and  it  is,  in 
fixct,  "  the  only  rule  and  measure  of  the  power  of  the 


•  See  Freeman,  Growth  of  Eng.  Constitution,  cliapter  iii. 


Govern- 
ment by 
preroga- 
tive. 


Kevolu- 
liun  of 
1U88. 


2  THE  SOVEREIGN,  IN  RELATION  TO 

Crown,  and  of  the  obedience  of  the  people."''  And 
while  the  sovereign  is  personally  irresponsible  for  all 
acts  of  government,  yet  the  functions  of  royalty  which 
appertain  to  him  in  his  political  capacity  are  regulated 
by  law,  or  by  constitutional  precept,  and  must  be  dis- 
charged by  him  solely  for  the  public  good,  and  not  to 
gratify  personal  inclinations.'' 

Before  the  Revolution  of  1688,  the  nionarchs  of  Eng- 
land ruled  by  virtue  of  their  prerogative,  and  with  the 
aid  of  ministers  of  their  own  choice.  These  ministers 
had  no  necessary  connection  with  Parliament;  although, 
if  peers  of  the  realm,  they  were  entitled  to  sit  therein. 
The  sovereign  was  the  originator  of  his  own  policy,  and 
was  not  bound  to  take  advice  before  deciding  upon 
affairs  of  state.  Moreover,  he  was  usually  sufficiently 
conversant  with  the  details  of  aduiinistration,  to  be  able 
to  govern  independently  of  the  consent  of  his  ministers. 
They  were  only  answerable  to  Parliament  for  high 
crimes  and  misdemeanors,  and  for  acts  of  mal-adminis- 
tration  which  were  directly  attributable  to  themselves. 
This  method  of  government  gave  rise  to  frequent  alter- 
cations and  struggles  between  the  Crown  and  Parlia- 
ment, which  sometimes  could  only  be  decided  by  an 
appeal  to  the  sword. 

The  Revolution  of  1G88  was  the  great  epoch  at 
which  the  power  of  the  Crown  was  subjected  to  con- 
stitutional limitations  and  restraints,  for  the  purpose  of 
bringing  it  into  harmony  w^itli  the  will  of  Parliament. 
The  foundation  principle  of  monarchy,  npon  which  the 
Constitution  of  England  is  based,  was  carefully  main- 
tained :  the  ancient  maxim,  tliat  "  the  king  can  do  no 
wrong,"  was  deliberately  re-asserted,  and  thereby  the 
monarchy  itself  was  protected  from  injurious  aspersion 
or  assault;   but  this  maxim  was  interpreted  so  as  to 


»-  Sir  R.  Walpole,  in  State  Trials,  vol.  xv.  p.  115. 
'  Todd,  Tarl.  Govt.  vol.  i.  pp.  1U8,  1242. 


ro 

iople."  ^  And 
Dii.siblc  for  all 
royalty  which 
are  regulated 
must  be  dis- 
od,  and  not  to 

larchs  of  Eng- 
,  and  with  the 
liese  ministers 
int;  although, 
to  sit  therein. 
An  policy,  and 
leciding  upon 
ily  sufficiently 
ion,  to  be  able 
'  his  ministers, 
lent  for  high 
'  mal-adminis- 
o  themselves. 

equent  alter- 
and  Parlia- 

cidcd  by  an 

at  epoch  at 
cted  to  con- 
le  purpose  of 
Parliament. 
)n  which  the 
efully  niain- 
g  can  do  no 
thereby  the 
us  aspersion 
:ed  so  as  to 

15. 


PARLIAMENTARY  GOVERNMENT  IN  ENGLAND,  3 

mean  that  no  mismanagement  in  government  is  im- 
putable to  the  sovereign  personally.  Furthermore, 
another  counterbalancing  principle  of  equal  importance 
was  then  brought  into  manifestation ;  namely,  that  no 
Avrong  can  be  done  to  the  people  for  which  the  Con- 
stitution does  not  provide  a  remedy.  The  application 
of  these  principles,  at  the  period  of  the  Revolution,  to 
acts  of  government  contributed  to  the  introduction  of 
our  present  political  system,  under  which  ministers 
of  state  partici[)ate  in  all  the  functions  of  royalty,  on 
condition  that  they  assume  a  full  responsibility  for  the 
same,  before  Parliament  and  the  people.  And  inas- 
much as  no  minister  could  appropriately  undertake  to 
be  responsible  for  a  policy  which  he  could  not  control, 
or  for  acts  which  he  did  not  a})prove,  it  has  necessarily 
followed  that  the  direction  and  administration  of  the 
policy  of  government  has  passed  into  the  hands  of  the 
constitutional  advisers  of  the  Crown,  for  the  time  being ; 
subject  only  to  their  continuing  to  retain  the  ctmtidence 
of  their  sovereign  and  of  Parliament,  and  to  their  admi- 
nistration of  public  affairs  being  approved  both  by  the 
Crown  and  by  the  people. 

The  three  leading  maxims  of  tlie  British  Constitu-  nofinition 
tion,  in  its  modern  form  f.nd  developments,  are :  the 
personal  irresponsibility  of  the  ]divr ;  the  responsibility 
of  his  ministers  for  all  acts  of  the  Crown ;  and  the  in- 
quisitoriid  power  and  ultimate  control  of  Parliament. 
These  maxims  were  first  distinctly  asserted  and  poten- 
tially secured  by  the  Revolution  of  1688.  Since  that 
epoch,  they  have  been  gradually  matured,  by  practice 
and  precedent,  so  as  to  embody  and  constitute  in  their 
operation  what  is  known  as  Parliamentary  Government. 

Personal  government  by  royal  prerogative  having 
given  place,  under  the  British  Constitution  as  now  inter- 
preted, to  parliamentary  government,  the  question  arises 
as  to  what  is  the  actual  position,  and  what  are  the 


of  railia- 
uu'iitury 

(ioNXTU- 

lueiit. 


■  »^>  r-  . 


Constitu- 
tional 
powers  of 
tlie  sove- 
reifin. 


4 


THE  SOVErEIGN,  IN  RELAl'lOX  TO 


powers  possessed  by  the  sovereign  in  connection  tli3re- 
with.  To  assume  that  the  sovereign  has  becomL-  a 
cipher  in  the  state, —  "a  dumb  and  senseless  idol," — 
without  any  measure  of  political  power,  is  entirely  in- 
consistent with  the  continued  existence  in  England  of  a 
monarchical  government.  Such  an  assumption  would 
transform  the  queen's  cabinet  ministers  into  an  oli- 
garchy, exercising  an  uncontrolled  power  over  the  pre- 
rogatives of  the  Crown  and  the  administration  of  public 
affairs,  upon  the  sole  condition  that  they  are  able  to 
secure  and  retain  a  majority  in  the  popular  branch  of 
the  legislature,  to  approve  their  policy  and  to  justify 
their  continuance  in  office.  There  have  not  been  want- 
ing some  political  thinkers  who  have  argued  in  favour 
of  a  system  of  this  kind ;  but,  however  theoretically 
defensible  it  may  appear  from  their  point  of  view,  it  is 
not  a  true  representation  of  the  British  Constitution, 
and,  should  it  ever  unhappily  prevail,  would  deprive  us 
of  one  of  the  main  securities  upon  which  the  liberties  of 
England  dejiend. 

Moreover,  the  fallacy  of  such  an  idea,  and  its  con- 
trariety to  existing  constitutional  practice,  will  be 
readily  apparent  to  those  who  will  refer  to  the  ex- 
pressed opinions  of  the  most  eminent  British  statesmen 
of  our  own  day  upon  this  subject.  Brougham,  Grey, 
Russell,  Derby,  Gladstone,  Disraeli,  and  Stafford  North- 
cote  —  all  of  them  re})resentative  men,  of  diverse  par- 
ties —  have  severally  testified,  upon  different  occasions, 
to  the  vital  and  influential  position  which  appertains  to 
the  sovereign  of  Great  Britain  under  parliamentary 
government.'^ 


•I  See  Todd,  Pari.  Govt.,  vol.  i. 
pp.  201-liIl,  vol.  ii.  pp.  205-211, 
408.  I\Ir.  Gladstone,  in  Contempo- 
rary Review,  vol  xxvi.  p.  ^0  ;  and 
see,  especially,  his  able  paper,  here- 
inafter cited,  in  tlie  North  Ameri- 
can   Review,  for    8ept.-0ct.   1878, 


pp.  170-212.  (See  his  Gleanings  of 
I'ast  Years,  vol.  i.  for  a  reprint  of 
both  these  articles.)  "  The  consti- 
tutional maxim,  '  the  king  reigns 
and  does  not  govern,'  has  n(!ver  been 
accepted  in  England  in  the  sense  of 
reducing  the  sovereign  to  a  cipher. ' ' ' 


PARLIAMENTARY  GOVERNMENT  IN  ENGLAND. 


ection  thore- 
as  becomL-  a 
elcss  idol," — 
5  entire^'^  in- 
England  of  a 
iiption  would 
into  an  oli- 
3ver  the  pre- 
tion  of  public 
r  are  able  to 
ar  branch  of 
nd  to  justify 
)t  been  want- 
led  in  favour 
theoretically 
of  view,  it  is 
Constitution, 
[Id  deprive  us 
le  hberties  of 

and  its  con- 
ice,  will  be 
V  to  the  ex- 
Isli  statesmen 
ligham.  Grey, 
ifford  North- 
diverse  par- 
|nt  occasions, 
ippertains  to 
irliamentary 


I  his  Gleanings  of 
for  a  reprint  of 
"  The  consti- 
the  king  reigns 
,'  luis  never  been 
Icl  in  the  sense  of 
Ign  to  a  cipher.'" 


It  is  true  that,  under  our  parliamentary  system, 
which  regards  the  sovereign  as  the  representative  and 
living  symbol  of  the  Mistitutions  of  the  coimtry,''  rather 
than  as  an  active,  energetic  personality,  the  personal 
will  of  the  monarch  can  only  find  a  legitimate  public 
expression  through  official  channels,  or  in  the  perform- 
ance of  acts  of  state  which  have  been  advised  or 
a})proved  by  responsible  ministers.  But  we  must  not 
lose  sight  of  the  fact,  that  what  has  been  termed  th 
impersonality  of  the  Crown  only  extends  to  direct  acts 
of  government ;  tliat  the  sovereign  is  no  mere  automa- 
ton, or  ornamental  appendage  to  the  body-politic, — 
but  is  a  personage  whose  consent  is  necessary  to  every 
act  of  state,  and  who  possesses  full  discretionary 
powers  to  deliberate  and  determine  upon  every  recom- 
mendation which  is  tendered  for  the  royal  sanction  by 
the  ministers  of  the  Crown.  As  every  imjjortant  act 
—  that  is  to  say,  every  thing  that  is  not  in  the  nature 
of  ordinary  official  routine,  but  Avliich  involves  a  dis- 
tinct policy,  or  would  conmiit  the  Crown  to  a  definite 
action,  or  line  of  conduct,  which  had  not  previously 
received  the  royal  approbation  —  should  first  be  sanc- 
tioned by  the  sovereign,  the  Crown  is  thereby  enabled 
to  exercise  a  beneficial  influence,  and  an  active  super- 
vision over  the  government  of  the  empire;  and  an 
opportunity  is  afforded  to  the  sovereign  for  exercising 
that  "constitutional  criticism"  in  all  affairs  of  state, 
which  is  the  undoubted  right  and  duty  of  the  Crown, 
and  which,  in  its  operation,  Earl  Grey  and  Mr.  Disraeli, 
amongst  living  statesmen,  have  concurred  in  declaring 
to  be  most  salutary  and  efficacious.^ 

During    the    lifetime    of    the    prince    consort,    her 


Functions 
of  tlio 
Crown. 


^Ir.  Cardwell's   opinion   (secretary         «  Martin,  Life  of  tlio  Trince  Con- 

of  state  for  tlie  colonies),  cited  iii  sort,  vol.  iv.  pp.  40,  154. 
Commons     Papers,    1867,     v.    49,         «  Todd,  Pari.  Govt.  vol.  ii.  pp. 

p.    (i()l.       Hansard    Debates,    vol.  209,212. 
clxxxviii.    p.    1113,   vol.   cxci.   p. 
1705:  vol.  cxlvi.  p.  311. 


The 

Prince 
Consort. 


Qnoon 
Victoria. 


6 


THE  SOVEREIGN,  IN  RELATION  TO 


present  Most  Gracious  Majesty  enjoyed,  as  is  well 
known,  exceptional  advantages  in  the  fulfilment  of  the 
arduous  and  resj)onsible  duties  which  devolve  upon 
the  Crown.  The  eminent  qualities  of  Prince  Albert, 
his  extensive  and  accurate  political  knowledge,  and 
his  varied  attainments  in  other  fields  of  research  and 
observation,  enabled  him  to  render  incalculable  service 
to  the  queen,  and  his  acknowledged  constitutional 
position  as  her  Majesty's  alter  ego,  justified  him  in  the 
performance  of  the  onerous  and  multifarious  duties, 
appertaining  to  the  "  consort  and  confidential  adviser 
and  assistant  of  a  female  sovereiiicn."  ^ 

After  the  lamented  death  of  the  prince,  in  18G1, 
her  Majesty  was  compelled  to  withdraw,  for  a  season, 
into  retirement,  and  she  has  never  since  been  able  to 
resume,  as  fully  as  before,  her  public  and  ceremonial 
duties.  But  while  her  long  continued  seclusion  has 
been  a  source  of  universal  regret,  and  even  to  some 
extent  of  complaint,  "  it  is  the  only  reproach  which 
her  people  have  ever  addressed  to  her."  Ten  years 
after  this  overwhelming  afliliction  befell  the  queen, 
two  eminent  English  statesmen  gave  assurance  of  her 
Majesty's  unabated  zeal  and  efficiency  in  the  fulfilment 
of  all  other  duties  appropriate  to  her  exalted  station. 
Earl  Granville,  then  secretary  of  state  for  foreign 
affliirs,  said,  in  the  House  of  Lords,  on  August  8,  1871, 
"  I  do  not  know  any  time  of  her  life  when  her  Majesty 
has  given  more  attention  than  she  does  at  present  to 
the  current  business  of  the  state,  or  when  the  inte- 
rest she  takes  in  all  parliamentary  and  administrative 
measures,  the  knowledge  she  takes  care  to  possess  on 
all  important  measures,  whether  home  or  foreign,  and 
the  supervision  she  exercises  over  all  appointments  to 
be  made  and  honours  to  be  distributed,  have  been  more 


s  For  a  discussion  of  the  constitutional  position  of  a  prince  consort, 
see  ibid.  vol.  i.  p.  195. 


PARLIAMENTARY  GOVERNMENT  IN  ENGLAND. 


as  is  well 
iient  of  tlie 
rohe  upon 
lice  Albert, 
ledge,  and 
search  and 
ible  service 
iistitutional 
him  in  the 
ous  duties, 
tial  adviser 

3,  in    1861, 

r  a  season, 

een  able  to 

ceremonial 

elusion  has 

en  to  some 

)ach  which 

Ten  years 

the  queen, 

ince  oi"  her 

i  fulfilment 

;ed  station. 

or   foreign 

ist  8,  1871, 

or  Majesty 

present  to 

the  inte- 

linistrative 

possess  on 

)reign,  and 

ntments  to 

been  more 


riace  consort 


:mgl 


shown."  He  added,  thr.t  so  far  from  her 
Majesty,  as  some  had  surmised,  "only  getting  informa- 
tion from  one  political  party,"  it  was  characteristic  of 
her  "  that,  whatever  party  may  be  in  power,  she  ever 
holds  the  most  open  and  conlidential  communications 
with  them;"  but  that,  "without  in  any  degree  acting 
in  a  manner  liable  to  misconstruction,  she  does  see  the 
leaders  of  the  party  in  opposition  to  the  government."'' 
A  few  weeks  afterwards,  Mr.  Disraeli  (then  the 
leader  of  the  opposition)  corroborated  the  foregoing 
statement;  and  took  occasion  to  observe  that,  although 
the  queen  was  still  unable  "  to  resume  the  performance 
of  those  public  and  active  duties  which  it  was  once 
her  pride  and  pleasure  to  fulfil,"  yet  that,  "  with  regard 
to  those  much  higher  duties  which  her  Majesty  is 
called  upon  to  perform,  she  still  performs  them  with  a 
punctuality  and  a  precision  which  have  certainly  never 
been  surpassed  and  rarely  equalled  by  any  monarch  of 
these  realms."  He  went  on  to  say  that  "  a  very  erro- 
neous impression  is  prevalent  respecting  the  duties  of 
a  sovereign  of  this  country.  Those  duties  are  multi- 
farious ;  they  are  weighty ;  they  are  incessant,  I  will 
venture  to  say  that  no  head  of  any  department  of  the 
state  performs  more  laborious  duties  than  those  which 
fall  to  the  sovereign  of  this  country.  There  is  no 
despatch  received  from  abroad,  nor  any  sent  from  the 
country,  which  is  not  submitted  to  the  queen ;  the 
whole  of  the  national  administration  of  this  country 
greatly  depends  upon  the  sign-manual;  and  of  our 
present  sovereign  it  may  be  said  that  her  signature 
has  never  been  placed  to  any  public  document  of  which 
she  did  not  approve.  Cabinet  councils  .  .  .  are  re- 
ported and  communicated  on  their  termination  by  the 


^  Hans.  Deb.  vol.  ccviii.   p.  1069.  mens,  in  the  debate  on  May  13,  1879, 

See  also  the  observations  of  Sir  Staf-  on  the  Prerosrative  of  the  Crown, 

ford    Xorthcote    (chancellor  of  the  Ibid.  vol.  ccxlvi.  p.  311. 
exchequer)  iu  the  House  of   Com- 


8 


THE  SOVERKIGN,  IN  RELATION  TO 


Forrrm- 
tioii  of 
opinion  oy 
till'  .sove- 
reign. 


minister  to  the  sovereign,  mid  they  often  call  from 
her  remarks  that  are  critical,  and  necessarily  require 
considerable  attention,"  .  .  .  and  "  such  complete  mas- 
tery of  what  li.'i.s  occurred  in  this  countrj^,  and  of  the 
great,  important  subjects  of  state  policy,  foreign  and 
domestic,  for  the  last  thirty  years,"  is  possessed  by 
the  queen,  that  "he  mnst  1  i.se  man  who  could 

not  profit  by  her  judgment  anu  v..vperience."  ' 

Adverting  to  a  point  referred  to  in  Earl  Granville's 
speech,  in  1871,  above  cited,  and  discussing  the  deli- 
cate constitutional  question  involved  in  the  peculiar 
relations  occupied,  as  well  by  l^aron  Stockmar  and 
by  the  prince  consort,  in  their  lifetime,  towards  the 
Throne,  Mr.  Gladstone  —  speaking  with  the  weight 
which  belongs  to  his  position  as  an  ex-prime-minister, 
and  with  the  precision  which  distino-ui.shes  his  utter- 
ances  upon  public  questions  —  claims  for  the  sove- 
reign, liberty  to  seek  for  information,  to  assist  her  own 
judgment,  from  every  available  source  at  her  com- 
mand. He  says,  "  it  does  not  seem  ea.sy  to  limit  the 
sovereign's  right  of  taking  friendly  counsel,  by  any 
absolute  rule,  to  the  case  of  a  husband.  If  it  is  the 
queen's  duty  to  form  a  judgment  upon  nnportant 
proposals  submitted  to  her  by  her  ministers,  she  has 
an  indisputable  right  to  the  use  of  all  instruments 
which  will  enable  her  to  discharge  that  duty  w^ith 
effect;  subject  always,  and  subject  only,  to  the  one 
vital  condition  that  they  do  not  disturb  the  relation, 
on  which  the  whole  machinery  of  the  Constitution 
hinges,  between  those  ministers  and  the  queen.  She 
cannot,  therefore,  as  a  rule,  legitimately  consult  in 
private  on  political  matters  with  the  party  in  opposi- 


'  Spooch  at  Ilufjliondon,  on  Sejit.  proval  of  her  iNTajp.sty,  are  cited  in 

26,1871.    Reniari    hie  examples  of  Martin'.s  Life  of  tlu!  I'rince  Consort, 

jiidicious  and    efficacious  critici.sm  vol.  iv.  pp.  78,  88,  90,  201-205,  284, 

upon  mini.sterial  measures,  submit-  310,  486. 
ted  for  the   consideration  and  ap- 


PARLIAMENTARY  GOVERNMENT  IN  ENGLAND. 


in  cull  from 
irily  require 
Jiiiplete  mjis- 
^,  and  of  the 
foreign  and 
w.sscssed  by 
II  who  could 

»'  i 

1  Granville's 

ULi^  the  deli- 

the  peculiar 

oekmar   and 

towards  the 

the   weight 

nie-niinister, 

L»s  his  ntter- 

•r   the    sove- 

sist  her  own 

it  her  coni- 

to  limit  the 

isel,  by  any 

If  it  is  the 

important 

ers,  she  has 

instruments 

duty  with 

o   the  one 

le  relation, 

onstitution 

ueen.     She 

consult  in 

in  opposi- 


y,  are  cited  in 

'rince  Consort, 

201-205,  28i, 


tion  to  the  government  of  the  day ;  but  she  will  have 
copious  public  means,  in  common  with  tlie  rest  of  the 
nation,  for  knowing  their  general  views,  through  Par- 
liament and  the  press.  She  cannot  consult  at  all, 
except  in  the  strictest  secrecy;  for  the  doubts,  the 
misgivings,  the  inquiries,  which  accompany  all  impar- 
tial deliberation  in  the  mind  of  a  sovereign  as  well  as 
of  a  subject,  and  which  would  transpire  in  the  course 
of  promiscuous  conversation,  are  not  matters  lit  for 
exhibition  to  the  world."  Of  such  private  and  con- 
fidential counsellors,  Prince  Albert  was  a  conspicuous 
and  truly  normal  example;  "and  another,  hardly  less 
normal,  was  Baron  Stockmar.  Both  of  them  observed, 
all  along,  the  essential  condition,  without  which  their 
action  wouhl  have  been  not  only  most  perilous,  but 
most  mischievous.  That  is  to  say,  they  never  affected 
or  set  up  any  separate  province  or  authority  of  their 
own ;  never  aimed  at  standing  as  an  opaque  medium 
between  the  sovereign  and  her  constitutional  advisers. 
In  their  legitimate  place,  they  took  up  their  position 
behind  the  queen ;  but  not,  so  to  speak,  behind  the 
Throne.  They  assisted  her  in  arriving  at  her  conclu- 
sions ;  but  those  conclusions,  once  adopted,  were  hers 
and  hers  alone.  She,  and  she  only,  could  be  recog- 
nized by  a  minister  as  speaking  for  the  monarch's 
office.  The  prince,  lofty  as  was  his  position,  and  ex- 
cellent as  was  his  capacity,  vanished  as  it  were  from 
view,  and  did  not  and  could  not  carry,  as  towards 
them,  a  single  ounce  of  substantive  authority."'' 

Coinciding,  unreservedly,  in  the  caution  conveyed 
in  the  foregoing  extract,  as  to  the  need  for  the  most 
scrupulous  avoidance,  on  the  part  of  the  sovereign,  of 
any  conmiunication  with  non-official  persons,  which 
w^ould  justify  an  imputation  of  a  desire  to  revive  the 


J  Gladstone's  Gleanings  of  Past  Years,  vol.  i.  pp.  72-74. 


^xD 


10 


THE  SOVEREIGN,  IN  RELATION  TO 


Indopon- 
(U'lit  posi- 
tion of  the 
Boveriij-ii. 


Value  of. 
tlio  sovc- 
reiffn's  of- 
fice. 


imconstltiitional  pmctices  of  a  former  reign,  —  when 
there  was  an  intluence  behind  the  Throne,  known  as 
that  of  "  the  king's  fri^nids,"  "^  —  and  repudiating  any 
attempt  to  disturb  the  harmonious  relations  which 
should  always  subsist  between  the  Crown  and  its  con- 
stitutional advisers,  —  we  may  nevertheless  perceive, 
in  the  frank  admission  of  the  right  of  the  sovereign  to 
avail  herself  of  all  proper  means  to  enlighten  and  in- 
form her  own  judgment,  how  completely  the  indepen- 
dent position  of  the  sovereign  of  Great  Britain,  under 
parliamentary  government,  is  recognized  by  English 
statesmen.  We  may  also  learn  from  this  argument 
that  no  obstacle  should  be  interposed  to  prevent  any 
legitimate  endeavour,  by  the  sovereign,  to  obtain  all 
needful  assistance  to  enable  her  to  fidfil  her  constitu- 
tional functions  to  the  best  advantjigc.  The  possible 
abuse  of  such  freedom  of  action,  in  any  given  case, 
would  be  effectually  restrained  by  the  equally  inde- 
pendent attitude  of  ministers  towards  the  Crown ;  by 
their  liberty  to  accept  or  to  reject  the  nltimate  con- 
clusions of  the  sovereign  upon  all  public  questions; 
and  by  the  con  '.deration  that  they  alone  are  held 
responsible  to  Parliament  and  to  the  nation  for  every 
act  of  state,  and  for  everything  which  is  done  in  the 
name  of  the  Crown. 

Bearing  in  mind  the  weight  of  responsibility  which 
devolves  upon  the  sovereign,  personally,  in  the  fulfil- 
ment of  the  onerous  functions  of  royalty,  it  is  manifest 
that  a  constitutional  monarch  "  should  be,  if  possible, 
the  best  informed  person  in  the  empire,  as  to  the  pro- 
gress of  political  events,  and  the  current  of  political 
opinion,  both  at  home  and  abroad."  "  Ministers  change, 
and  wdien  they  go  out  of  office  lose  the  means  of  access 
to  the  best  information,  which  they  had  formerly  at 


k  See  Todd,  Pari.  Govt.  vol.  i.  p.  49. 


rAllLIAMENTARY  GOVERNMENT  IN  ENGLAND. 


11 


rrn, — wlien 
2,  known  as 
dinting  any 
ions  which 
and  its  con- 
's perceive, 
ove reign  to 
ten  and  in- 
le  indepen- 
tiiin,  under 
hy  English 

argument 
re  vent  any 

obtain  all 
ir  constitu- 
hc  possible 
^iven  case, 
lally  inde- 
^lown ;  by 
mate  con- 
questions; 

are    held 

for  every 
)ne  in  the 

iy  which 
the  fulfil- 
manifest 
possible, 
the  pro- 
political 
s  change, 
of  access 
[iierly  at 


command.  The  sovereign  remains,  and  to  him  this  in- 
formation is  always  open."  Moreover,  "  the  most  patri- 
otic minister  has  to  think  of  his  party.  Ilis  judgment, 
therefore,  is  often  insensil)ly  war[)ed  by  party  conside- 
rations. Not  so  the  constitutional  sovereign,  who  is 
exposed  to  no  such  disturbing  agency.  As  the  perma- 
nent head  of  the  nation,  he  has  only  to  consider  what 
is  best  for  its  welfare  and  its  honour ;  and  his  accumu- 
lated knowledge  and  experience,  and  his  calm  and 
practised  judgment,  are  always  available,  in  council, 
to  the  ministry  for  the  time,  without  distinction  of 
party."' 

A  constitutional  ruler  is,  in  ftict,  the  permanent  presi- 
dent of  his  own  ministry ;  with  liberty  to  share  in  the 
initiation,  as  well  as  in  the  maturing  of  public  measures : 
provided  only,  that  he  does  not  limit  the  right  of  his 
ministers  to  deliberate,  in  private,  before  submitting 
for  his  approval  their  conclusions  in  council ;  and  that 
they,  on  their  part,  are  equally  careful  to  afford  to 
their  sovereign  an  opportunity  of  exercising  an  inde- 
pendent judgment  upon  whatever  advice  they  may 
tender  for  his  acceptance. 

In  subjecting  that  advice  to  the  scrutiny  of  a  mind 
intent  only  upon  promoting  the  public  good,  an  ex- 
perienced and  sagacious  sovereign  is  able  (should  the 
necessity  unfortunately  arise)  to  detect  and  rebuke 
selfish  and  unworthy  aims,  unmask  the  character  of 
measures  which  may  have  been  prompted  by  party 
motives  rather  than  by  a  regard  for  the  interests  of 
the  state,  and  exert,  towards  his  ministers,  on  the  public 
behalf,  a  healthy  moral  suasion,  capable  of  correcting 
the  injurious  operation  of  partisan  or  sectional  influ- 
ences. 

As  Earl  Grey  has  pointed  out,  in  his  admirable  Essay 

1  Prince  Albert's  Memorandum,  iu  Martin's  Life  of  the  Prince  Consort, 
vol.  ii.  p.  159. 


Safe- 
guards 
aj^airibt 
abuse  of 
niiristeri- 
al  power, 


or  of  roy- 
al autho- 
rity. 


12 


THE  SOVEREIGN,  IN  RELATION  TO 


on  Parliamentary  Government,  the  obligation  imposed 
upon  the  sovereign's  ministers  that  they  should  obtain 
the  direct  sanction  of  the  Crown  for  all  their  most  im- 
portant measures  is  £1  safeguard  against  abuse.  "The 
Crown,  it  is  true,  seldom  refuses  to  act  upon  advice 
deliberately  pressed  upon  it  by  its  servants,  nor  could 
it  do  so  frequently  without  creating  great  inconve- 
nience. But  the  sovereigns  of  this  country  may,  and 
generally  have,  exercised  much  influence  over  the  con- 
duct of  the  government;  and  in  extreme  cases  the 
power  of  the  Crown  to  refuse  its  consent  to  what  is 
proposed  by  its  servants  may  be  used  with  the  greatest 
benefit  to  the  nation." '" 

Should  it  be  needful  for  the  sovereign  to  proceed  to 
extremity,  and  reject  the  advice  of  his  ministers,  upon 
a  particular  occasion,  it  is  for  them  to  consider  whether 
tliey  will  defer  to  tlic  judgment  of  their  sovereign,  or 
insist  upon  their  own  opinion  ;  and  as  a  last  resort  tliey 
must  decide  whether  they  will  ^deld  the  point  of  difler- 
ence,  or  tender  their  resignations.  For  a  minister,  in 
such  a  position, "  is  bound  either  to  obey  the  Crown,  or 
to  leave  to  the  Crown  that  full  liberty  which  the  Crown 
must  possess  of  no  longer  continuing  that  minister  in 
office."" 

In  such  an  emergency,  of  course,  the  personal  will 
and  opinions  of  the  sovereign  are,  for  the  time,  appa- 
rent and  predominant.  But  these  occasions  are  of  rare 
occiuTcnce  in  the  practical  operation  of  parliamentary 
government.  And  when  they  do  happen,  all  possible 
abuse  is  prevented  by  t\iQ  necessity  which  then  arises 
for  the  sovereign  to  find  other  advisers,  who  are  willing 
to  accept  his  views,  and  become  responsible  for  them  to 
Parliament  and  to  the  country.  Should  he  fail  in  this 
endeavour,  then  comes  into  operation  one  of  those  salu- 


•n  r.rey,  Pari.  Covt.  (od.  1801)  p.  .5. 

"  Lord  John  llussell,  llunsurd's  Debates,  vol.  cxix.  p.  00. 


TO 


PARLIAMENTARY  GOVERNMENT  IN  ENGLAND. 


13 


;ation  imposed 
should  obtain 
their  most  im- 
abuse.  "The 
t  upon  advice 
mts,  nor  could 
^reat  inconve- 
ntiy  may,  and 
over  the  con- 
mie  cases  the 
■nt  to  \vliat  is 
:h  the  greatest 

to  proceed  to 
iiinisters,  upon 
isider  whether 
'  sovereign,  or 
ast  resort  they 
point  of  difter- 
a  minister,  in 
the  Crown,  or 
ich  the  Crown 
it  minister  in 

personal  will 
li  time,  appa- 
ns  are  of  rare 
)arliamentary 
1,  all  possible 
1  then  arises 
10  are  willing 
for  them  to 
e  fail  in  this 
if  those  salu- 

,  00. 


tary  checks,  which  the  practice  of  the  Constitution  has 
imposed  upon  the  exercise  of  the  royal  prerogative, 
and  the  sovereign  is  compelled  to  abandon  a  line  of 
conduct  for  .vhicii  he  cannot  find  any  statesmen  who 
are  willing  to  become  responsible. 

But  if,  in  the  question  at  issue  between  the  sove-  "Prorop- 
rei(»"n  and  his  ministers,  those  ministers  are  sustained  solution. 
by  a  mr.iority  in  the  Commons,  House  of  Parliament, 
or  are  in  the  enjoyment  of  the  confidence  of  that  house 
upon  their  general  policy,  it  is  still  open  to  the  Crown 
to  appeal  to  the  country.  In  order  that  the  sovereign 
may  be  able  to  appeal,  in  a  constitutional  manner,  from 
the  advice  of  his  ministers,  and  from  the  expressed 
approval  of  the  ministerial  policy  by  the  popular 
chamber,  recourse  must  be  had  to  the  prerogative  of 
dissolution.  It  is  true  that  this  prerogative,  like  all 
other  acts  of  sovereignty,  is  ordinarily  exercised  upon 
the  advice  of  ministers,  for  the  purpose  of  determining 
an  issue  between  themselves  and  the  House  of  Com- 
mons. But  it  may  suitably  be  resorted  to  by  the  sove- 
reign, after  the  resignation  or  dismissal  of  ministers 
whose  advice  the  sovereign  has  been  unable  to  accept, 
or  whose  policy  and  public  conduct  the  sovereign  has 
ceased  to  approve.  This  reserved  power  is  hiherent  in 
the  Crown,  in  the  English  Constitution  :  althoutih  it 
can  only  be  constitutionally  invoked  upon  grave  neces- 
sity, and  for  reasons  which  are  capaljle  of  being  ex- 
plained and  justified  to  Parliament.  And,  as  a  security 
against  arbitrary  or  unreasonable  action  on  the  part  of 
the  sovereign,  it  is  needful  that  a  new  administnitioii 
should  first  be  formed,  who  are  willing  to  assume 
responsibility  for  the  action  of  the  Crown  in  the  dis- 
missal or  resignation  of  their  predecessors  ;  and  for  any 
consequent  appeal  to  the  constituencies.  And,  fur- 
thermore, that  there  should  be  a  reasonable  ground  for 
believing    that,   upon   the   question   involved    in    the 


14 


TIIE  SOVEREIGN,  IN   RELATION  TO 


ill 


fti 


Differ- 
ences be- 
tween mi- 
nisters 
and  tlie 
Crown. 


change  of  administration,  the  existing  House  of  Com- 
mons does  not  correctly  represent  the  opinions  and 
wishes  of  the  nation.'' 

"  The  sovereign  cannot,  indeed,  impose  a  policy,  either 
upon  his  minister  or  his  Parliament,  but  he  can  dismiss 
his  minister,  and  he  can  appeal  to  the  country  against 
the  judgment  of  Parliament.  George  III.  was  strictly 
within  his  rights  when  he  dismissed  the  Coalition  [both 
in  1784  and  in  1807].  William  IV.  was  equally  within 
his  rights  when  he  dismissed  Lord  Melbourne,  and 
appealed  to  the  country.  In  these  several  cases  a 
great  question  of  policy  was  raised,  and  determined  by 
competent  authority.  In  the  one  case  [or,  rather,  in 
the  first  two  cases],  the  action  of  the  king  was  con- 
firmed by  the  nation;  in  the  other,  it  was  reversed. 
Everything  was  done  constitutionally  and  in  order."  '' 

Differences  of  opinion,  between  the  sovereign  and  his 
constitutional  advisers,  upon  minor  matters,  are  easily 
susceptible  of  adjustment,  by  concession  or  compromise. 
But  vital  and  essential  disagreement  must  inevitably 
result  in  a  surrender  of  the  question  at  issue,  or  in  a 
change  of  ministers.  And  the  practical  obligation, 
which  the  Crown  thereby  incurs,  of  finding  a  ministry 
who  are  willing  to  assume  full  responsibility  for  the 
policy  which  occasioned  the  transfer  of  power  to  them- 
selves, and  the  necessity  for  a  ratification  of  that  policy 
by  the  newly  elected  House  of  Commons,  will  always 
suffice  to  restrain  the  Crown  from  an  undue  exercise 
of  prerogative  in  this  direction  ;  and  from  the  endeavour 
to  impress  the  personal  will  of  the  sovereign  upon  the 
government  of  the  empire,  where  that  will  is  not  sus- 
tained and  approved,  in  the  last  resort,  by  public  opinion 
and  national  consent. 


<*  See   Todd,   Pari.   (Jovt.  vol.  i.     p.  274,  and  see  IMr.  Gladstone's  re- 
p.  22:1:  vol.  ii.  p.  40")  <'r>-'r7.  marks   in    liis    (Jleauings   of    Past 

P  Edinburgh  Hevie\v,July,  1878,     Years,  vol.  i.  p.  2;il. 


PARLIAMENTARY  GOVERNMENT  IN  ENGLAND. 


15 


)use  of  Com- 
)pinions  and 

policy,  either 
)  can  dismiss 
[ntry  against 
was  strictly 
ilition  [both 
iially  within 
bourne,  and 
iral  cases   a 
terniined  by 
)r,  rather,  in 
ig  was  con- 
is  reversed, 
in  order."  J* 
eign  and  his 
s,  are  easily 
compromise, 
inevitably 
^ue,  or  in  a 
obligation, 
a  ministry 
|ity  for  the 
}v  to  them- 
jthat  policy 
jvill  alwaj'S 
e  exercise 
lendeavour 
1  upon  the 
lis  not  Sus- 
ie opinion 


hulstono'a  re- 
lugs  of    I'ast 


tions  on 
tho  action 
of  tlie 
Crown. 


Ample  security  is  thus  obtained  that  no  changes  of 
administration  will  be  effected  by  the  intervention  of 
the  Crown,  but  such  as  would  ultimately  commend 
themselves  to  the  judgment  of  Parliament. 

The  right  of  a  sovereign  to  dismiss  his  ministers  is 
imquestionable ;  but  that  right  should  be  exercised 
solely  in  the  interests  of  the  state,  and  on  grounds 
which  can  be  justified  to  Parliament.  By  the  opera- 
tion of  this  principle,  the  personal  interference  of  the 
sovereign  in  state  affairs  is  restrained  within  appropriate 
limits.  It  is  prevented  from  assuming  an  arbitrary  or 
self-willed  aspect,  and  is  rendered  constitutional  and 
beneficent. 

Thus  far,  we  have  been  endeavouring  to  ascertain  the  Limita 
exact  limits  within  which,  in  the  constitutional  monar- 
chy of  Great  Britain,  the  Crown  is  competent  to  act,  in 
accepting  or  rejecting  the  advice  of  ministers  who  are 
responsible  to  Parliament  for  the  government  of  the 
empire.  We  have  considered  the  circimistanccs  under 
which  the  sovereign  would  be  justified  in  withholding 
his  consent  from  recommendations  submitted  for  his 
approval,  and  the  ultimate  consequences  of  such  dis- 
agreement. And  we  have  arrived  at  the  conclusion  that, 
under  parliamentary  government,  the  national  will,  as 
conveyed  to  the  sovereign  through  ministers  in  whom 
Parliament,  and  particularly  the  House  of  Commons, 
has  placed  its  confidence,  must  finally  and  absolutely 
prevail. 

The  unqualified  acceptance  and  cordial  recognition 
of  this  principle,  by  the  occupants  of  the  throne,  since 
the  constitutional  system  of  England  has  assumed  its 
present  shape,  have  contributed  to  produce  the  best 
understanding  between  the  sovereign  and  Parliament 
without  hindering  the  exercise  of  the  rightful  influence 
of  the  monarch  in  the  conduct  of  public  affairs. 

On  the  one  hand,  the  sovereign  supports  frankly  and 


16 


THE   SOVEREIGN,  IN  RELATION  TO 


III 


iji 


Interac- 
tion be- 
tween the 
Crown 
and  its  ad- 
visers. 


Unreserv- 
ed a  pi)lic'a- 
tion  of 
ministeri- 
al respon- 
sibility. 


hononrably,  and  with  all  liis  might,  the  ministry  for  the 
time  being,  so  long  as  it  commands  a  laajority  in  the 
House  of  Commons,  and  administers  the  government 
with  integrity,  for  the  welfare  of  ihe  nation.  Elevated 
above  the  blinding  influences  of  party,  and  intent  only 
upon  promoting  the  public  good,  the  sovereign  never 
ceases  to  influence,  by  opinion  or  suggestion,  the  direc- 
tion of  the  state.  And  to  this  end  he  is  free  to  avail 
himself  of  all  the  oj)portunities  afforded  by  his  exalted 
station  and  eminent  advantages.  By  suggestion  or 
remonstrance,  by  impartial  advice,  and  by  enlightened 
criticism,  proceeding  from  a  mind  that  should  be  richly 
stored  with  knowledge  and  experience  upon  all  affairs 
of  state,  or  questions  of  puljlic  policy,  that  might  at 
any  time  demand  consideration  or  settlement,  the  in- 
fluence of  the  monarch  may  be  legitimately  exercised 
and  expressed.  But  the  final  conclusion  of  the  matter 
must  rest  with  the  minister,  upon  whom  devolves 
responsibility  to  Parliament  for  every  act  of  execu- 
tive authority. 

On  the  other  hand,  it  is  in  the  highest  degree  unwar- 
rantable to  assume  that  any  exception  exists  to  the 
operation  of  the  constitutional  rule  which  requires  that 
the  ministers  of  the  Crown  should  be  held  responsible 
for  the  performance,  by  the  sovereign,  of  all  acts  of 
state.  It  is  obviously  impossible  to  require  responsi- 
bility where  power  has  not  been  previously  entrusted. 
Accordingly,  an  endeavour  to  exempt  from  the  opera- 
tion "^f  this  rule  the  exercise  of  any  prerogative,  or  the 
fulfilment  of  any  function  of  royalty,  would  be  a  viola- 
tion of  the  first  principles  of  parliamentary  govern- 
ment. The  prerogati^'es  of  the  Crown  in  relation  to 
the  army  and  navy,  and  in  the  direction  of  the  fo- 
reign policy  of  the  empire,  were  at  first,  and  for  a  time, 
practically  excluded  from  ministerial  control ;  but  these 
monarchical  functions  gradually  became  subject  to  the 


II 


PARLIAMENTARY  GOVERNMENT  IN  ENGLAND. 


17 


istry  for  the 
ority  in  the 
government 
.     Elevated 

intent  only 
reign  never 
n,  the  dlrec- 
ree  to  avail 

his  exalted 
o:i>;estion  or 
enlightened 
lid  be  richly 
m  all  affairs 
at  might  at 
lent,  the  in- 
ly exercised 
r  the  mf.tter 
m  devolves 
:t  of  execu- 


gree  unwar- 

^ists  to  the 

quires  that 

responsible 

all  acts  of 

•e  responsi- 

entrusted. 

the  opera- 

Itivc,  or  the 

be  a  viola- 

Iry  govern- 

Irelation  to 

of  the  fo- 

for  a  time, 

;  but  these 

ect  to  the 


supervision  of  ministers  :i  and  it  is  now  obvious  that 
any  attempt  on  the  part  of  the  sovereign  to  retain  in 
his  own  hands  power,  in  respect  to  military  adrr.'aistra- 
tion  or  diplomacy,  would  be  as  inconsistent  with  con- 
stitutional usage  as  would  be  the  personal  and  direct 
interference  by  the  sovereign  in  domestic  affairs.  In 
all  acts  of  government,  the  ministers  of  the  Crown  are 
required  to  assume,  on  behalf  of  and  with  the  consent 
of  the  sovereign,  the  burden  of  personal  power,  and 
thereby  relieve  the  Crown  of  all  personal  responsibility. 
Even  in  his  choice  of  a  first  minister,  which  has  been 
termed  "  the  only  personal  act  the  King  of  England 
has  to  perform," '  that  choice  is  practically  influenced 
by  the  necessity  for  its  being  confirmed  by  the  appro- 
bation of  Parliament :  so  that,  in  a  constitutional  point 
of  view,  so  universal  is  this  principle  that  "there  is 
not  a  moment  in  the  king's  life,  from  his  accession  to 
his  demise,  during  which  there  is  not  some  one  respon- 
sible to  Parliament  for  his  public  conduct;  and  Hhere 
can  be  no  exercise  of  the  Crown's  authority  for  which 
it  must  not  find  some  minister  willing  to  make  himself 
responsible.' " " 

The  personal  irresponsibility  of  the  sovereign,  and 


1  See  Toda,  Pari.  Govt.  vol.  i. 
pp.  44,  5G. 

^  By  the  Duke  of  Wellincjton: 
see  (jolclit'ster  Diary,  vol.  iii.  p. 
501. 

"  Todd,  vol.  i.  p.  170.  The  po- 
litical acts  of  the  sovereign  dining 
a  ministerial  interregnum  are  no 
exceptions  to  this  rule.  When  Sir 
Robert  Teel  took  office,  after  the 
dismissal,  by  William  IV.  of  the 
Melbourne  administration,  he  "  ac- 
cepted the  responsibility  of  every- 
thing that  had  been  done  in  the 
interval  betwccMi  his  accession  to 
office  and  the  dismissal  "  of  his  pre- 
decessor, thereby  jiroving  that  not 
even  in  such  an  extreme  case  "could 
the   Crown    itself   conunit  an  act 


•which  could  be  the  subject  of  cen- 
sure or  blame."  (See  Mr.  Court- 
ney's speech  in  Hans.  Deb.  vol. 
ccxlvi.  p.  253.)  The  reasonableness 
of  such  a  rule,  as  well  as  its  neces- 
sity, cannot  be  questioned.  "  An 
incoming  premier,  in  order  to  jus- 
tify his  own  acceptance  of  office, 
must  acquaint  himself  with  the  cir- 
cumstances in  which  the  offer  is 
made,  including  all  that  has  been 
done  since  the  office  became  vacant; 
and  his  acceptance  of  office  thus  be- 
comes a  guarantee  to  the  nation, 
that  to  the  best  of  his  judgment 
and  conscience  everything  has  been 
rightly  done."  (Ilenry  Dunckley, 
in  Fortnightly  Review,  June  1879, 
p.  870.) 


a 


:za^ 


18 


THE  SOVEREIGN,  IN  RELATION  TO 


Irrcspon- 
sibilit}'  of 
tilt'  sove- 
reign. 


ni         I' 


Di|  r 


The  cabi- 
net. 


St 


I. 


his  absolute  immunity  from  the  consequences  of  mis- 
government,  is  ca  fixed  principle  in  the  English  political 
system.  ''There  is  no  provision  in  the  law  of  the 
United  Empire,  or  in  the  machinery  of  the  Constitution, 
for  calling  the  sovereign  to  account ;  and  only  in  one 
solitary  and  improl)able,  but  perfectly  defined,  case, — 
that  of  liis  submitting  to  the  jurisdiction  of  the  Pope, 
—  is  he  deprived  by  statute  of  the  throne.  Setting 
aside  that  peculiar  exception,  the  offspring  of  a  neces- 
sity still  freshly  felt  when  it  was  made,  the  Constitution 
might  seem  to  be  founded  on  the  belief  of  a  real 
infallibility  in  its  head." 

The  counterpoise  and  correlative  of  this  constitu- 
tional maxim  is  in  another,  no  less  important,  which 
affixes  upon  the  cabinet — in  other  words,  upon  the 
advisers  and  ministers  of  the  Crown  —  the  ultimate  and 
unqualified  "responsibility  of  deciding  what  shall  be 
done  in  the  Crown's  name,  in  every  branch  of  adminis- 
tration, and  every  department  of  policy,  coupled  only 
with  the  alternative  of  ceasing  to  be  ministers,  if  what 
they  may  advisedly  deem  the  requisite  power  of  action 
be  denied  them."  The  political  action  of  the  monarch 
must  invariably  and  "  everywhere  be  mediate,  and  con- 
ditional upon  the  concurrence  of  confidential  advisers." 
lie  cannot  "  assume  or  claim  for  himself  final  or  pre- 
ponderating, or  even  independent,  power  in  any  one 
department  of  state." 

"The  cabinet  is  the  threefold  hinge  that  connects 
together  for  action  the  British  Constitution  of  King  or 
Queen,  Lords,  and  Commons.  Upon  it  is  concentrated 
the  whole  strain  of  the  government,  and  it  constitutes, 
from  day  to  day,  the  true  centre  of  gravity  for  the 
working  system  of  the  state,  although  the  ultimate 
superiority  of  force  resides  in  the  representative  cham- 
ber." And  upon  the  cabinet  "it  devolves  to  provide 
that  the  House  of  Parliament  shall  loyally  counsel  and 


I  th( 

|cei 
freij 
fto  ' 
I  thei 
Imu 


|ren( 
thi 

min 
cec 

80V 

try 

tile 

^'he 

cumi 

the 


TO 


PARLIAMENTARY  GOVERNMENT  IN  ENGLAND. 


19 


serve  the  Crown,  and  that  the  Crown  shall  act  strictly 
in  accordance     ith  its  obligations  to  the  nation."     It 
is,   therefore,   incu;nbent   npon    ministers    always    to 
remember  that  they  are  charged  with  the  defer ce  and 
maintenance  of  the  rights  of  the   Crown  und'^r  the 
British  Constitution,  and  that  it  is  their  especial  duty  to 
protect  and  preserve  intact,  to    the    utmost   of  their 
power,  the  royal  prerogative.     Practically,  ever  since 
the  commencement  of  the  Reform  movement,  in  1830, 
the  constitutional  monarchy  of  England  has  been  in 
danger,  through   the    onward   progress  of  democratic 
ideas,  of  being   converted   into   a   purely   ministerial 
oligarchy ;  to  the  detriment,  not  only  of  the  personal 
rights  of  the  Crown  in  the   body-politic,  but  also  of 
those  vital  interests  therein  which  are  of  national  con- 
cern, and  which  it  is  the  peculiar  province  of  the  sove- 
I  reign  to  conserve.     It  is  upon  the  fidelity  of  ministers 
f  to  the  principles  of  the  Constitution,  as  well  as  upon 
I  their  personal  loyalty  to  the  sovereign,  that  the  nation 
|must   rely   for   the    prevention   of    such   a   calamity. 
^'This  ring  of  responsible  ministerial  agency  forms  a 
fence  around  the  person  of  the  sovereign,  which  has 
thus  for  proved  impregnable  to  all  assaults. 

"  In  the  face  of  the  country,  the  sovereign  and  the 
ministers  are  an  absolute  unity.     The  one   may  con- 
cede to  the  other :  but  the  limits  of  concessions  by  the 
sovereign  is  at  the  point  where  he  becomes  willing  to 
ntre  that  connects     try  the  experiment  of  changing  his  government ;  and 
it^tion  of  King  or    $he  limit  of  concession  by  the  ministers  is  at  the  point 
it  is  concentrated   |pvdiere  they  become  unwilling  to  bear,  what  in  all  cir- 
and  it  constitutes,  Jumstances  they  must  bear  while  they  remain  ministers, 
of  gravity  for  the  ilie  undivided  responsibility  of  all  that  is  d  me  in  the 
ough  the  ultimate      •™™'— ^"™"" 

m^esentative  cham-  I   "There  is,  indeed,  one  great  and  critical  act,  the 
evolves  to  provide  fesponsibility  for  which  falls  momentarily  or  provision 
lovally  counsel  and  illy  on  the  sovereign ;  it  is  the  dismissal  of  an  existin 


juences  of  mis- 
English  political 
lie'' law   of  the 
he  Constitution, 
md  only  in  one 
defined,  case,— 
ion  of  the  Pope, 
throne.     Setting 
,ring  of  a  neces- 
the°  Constitution 

belief  of  a  real 

of  this  constitu- 
important,  which 
words,  upon  the 
-the  ultimate  and 
ng  what  shall  be 
)ranch  of  adminis- 
aicy,  coupled  only 
ministers,  if  what 
tc  power  of  action 
)n  of  the  monarch 
mediate,  and  con- 
fidential advisers." 
mself  final  or  pre- 
Ipower  in  any  one 


Duty  of 
ministers 
to  the 
Crown. 


cr 
o 


20 


THE  SOVEREIGN,  IN  RELATION  TO 


ters. 


Dismissal  ministry,  and  the  cappointment  of  a  new  one/'  "  Un- 
conditionally  entitled  to  dismiss  the  ministers,  the 
sovereign  can,  of  course,  choose  his  own  opportunity. 
He  may  defy  the  Parliament,  if  he  can  count  upon  the 
people.  AVilliam  IV.,  in  the  year  1834  [when  he  dis- 
missed the  government  of  Lord  Melbourne],  had 
neither  Parliament  nor  people  with  him.  His  act  was 
within  the  limits  of  the  Constitution,  for  it  was  covered 
by  the  responsibility  of  the  acceding  ministry.  But  it 
reduced  the  liberal  majority  from  a  number  considera- 
bly beyond  three  hundred  to  about  thirty,  and  it  con- 
stituted an  exceptional,  but  very  real  and  large,  action 
on  the  politics  of  the  country  by  the  direct  will  of  the 


kino-, 


»> 


tlie  sove 
reign 


\    !! 


"But  this  power  of  dismissing  a  ministry  at  will, 
large  as  it  may  be  under  given  circumstances,  is  neither 
the  safest,  nor  the  only  power  which,  in  the  ordinary 
course  of  things,  fulls  constitutionally  to  the  personal 
share  of  the  wearer  of  the  Crown.  He  is  entitled,  on 
Constitu-  all  subjects  comhig  before  the  ministry,  to  knowledge 
powers  of  and  opportunities  of  discussion  unlimited  save  by  the 
iron  necessities  of  business.  Though  decisions  must 
ultimately  conform  to  the  sense  of  those  who  are  to  be 
responsible  for  them,  yet  their  business  is  to  inform 
and  persuade  the  sovereign,  not  to  overrule  him. 
Were  it  possible  for  him,  within  the  limits  of  human 
time  and  strength,  to  enter  actively  into  all  public 
transactions,  he  would  be  fully  entitled  to  do  so. 
What  is  actually  submitted  is  supposed  to  be  the  most 
fruitful  and  important  part,  the  cream  of  affairs.  In 
the  discussion  of  them,  the  monarch  has  more  than 
one  advantage  over  his  advisers."  "He  r^'xy  be  there- 
fore a  weighty  factor  in  all  deliberatio.is  of  state." 
The  sovereign  is,  moreover,  entitled  to  invite  the  con- 
sideration of  ministers  to  any  matter  or  question  which 
may  appear  to  the  Crown  to  be  deserving  of  atten- 


no 


"    "Un- 

nisters,  the 
opportunity, 
it  upon  the 
len  he  dis- 
lurne],  hud 
His  act  was 
vas  covered 
ry.  But  it 
[•  considera- 
and  it  con- 
irge,  action 
will  of  the 

try  at  will, 
?s,  is  neither 
le  ordinary 
he  personal 
entitled,  on 
knowledge 
ave  by  the 
sions  must 
0  are  to  be 
to   inform 
rule    him. 
of  human 
all  public 
to    do   so. 
the  most 
ffairs.     In 
ore    than 
be  there- 
of state." 
the  con- 
ion  which 
of  atten- 


PARLIAMENTARY  GOVERNMENT  IN  ENGLAND. 


21 


tion.  This  privilege  is  not  to  be  regarded  as  warrant- 
ing the  initiation,  by  the  sovereign,  of  questions  of 
public  policy,  in  derogation  of  the  special  functions 
and  responsibility  of  the  advisers  of  the  Crown.  The 
right  to  initiate,  in  the  sense  of  dictation,  would  in- 
volve a  claim  to  control  or  impair  the  right  of  free 
deliberation,  and  would  savour  too  much  of  personal 
government.  It  is  otherwise  when  the  sovereign 
simply  suggests  to  ministers  topics  or  arguments,  in 
relation  to  public  affairs,  to  which  their  consideration  is 
invited,  without  endeavouring  to  coerce  their  freedom 
of  action  or  of  deliberation  thereon.  If  the  ministry 
agree  to  carry  out  such  suggestions,  they  must  do  so 
on  condition  of  assuming  entire  responsibility  for  the 
same ;  for  no  responsibility  can  be  attached  to  the 
Crown  itself.  After  all,  the  power  of  the  sovereign 
"  spontaneously  takes  the  form  of  influence ;  and  the 
amount  of  it  depends  on  a  variety  of  circumstances, 
—  on  talent,  experience,  tact,  weight  of  character, 
steady  untiring  industry,  and  habitual  presence  at  the 
seat  of  government.  In  proportion  as  any  of  these 
might  fail,  the  real  and  legitimate  influence  of  the 
monarch  over  the  course  of  affairs  would  diminish ;  in 
proportion  as  they  attain  to  fuller  action,  it  would 
increase.  It  is  a  moral,  not  a  coercive,  influence.  It 
operates  through  the  will  and  reason  of  the  ministry, 
not  over  or  against  them." 

Finally. "  it  is  a  cardinal  axiom  of  the  modern  British  supr 
Constitution,  that  the  House  of  Commons  is  the  great-  S^j^ioJae 
est  of  the  powers  of  the  state."     It  is  to  the  House  of  ^LS?'"' 
Commons  that  every  act  of  government,  performed  by 
responsible  ministers  in  the  name  and  on  behalf  of  the 
Crown,  must  be  explained  and  justified,  and  by  them 
that  it  must  be  ultimately  approved.     And  "  the  sole 
appeal  from  the  verdict  of  the  house  is  a  rightful  ap- 


ore- 


luons. 


Qucon 
Victoria. 


1 


I    i 


22 


THE  SOVEREIGN,  IN  RELATION  TO 


peal   to   those    from  whom   it  received   its    commis- 


sion 


"  t 


The  strict  adherence  to  the  maxims  of  parliamentary 
government  which  has  characterized  the  conduct  of  her 
Majesty  Queen  Victoria,  since  her  accession  to  the 
throne,  is  too  well  known  to  need  remark  in  these 
pages.  But  it  fortunately  happens  that  the  public  has 
been  placed  in  possession  of  her  Majesty's  own  ideas  of 
hvY  duty  as  a  constitutional  sovereign.  Writing  to  the 
Emperor  Napoleon  III.,  in  explanation  of  the  difference 
between  the  English  and  French  systems  of  govern- 
ment, the  Queen  observes :  "lam  bound  by  certain 
rules  and  usages.  I  have  no  uncontrolled  power  of 
decision.  I  must  adopt  the  advice  of  a  council  of 
responsible  ministers,  and  these  ministers  have  to  meet 
and  to  agree  on  a  course  of  action,  after  having  arrived 
at  a  joint  conviction  of  its  justice  and  utility.  They 
have,  at  the  same  time,  to  take  care  that  the  steps 
which  they  wish  to  take  are  not  only  in  accordance 
with  the  best  interests  of  the  country,  but  also  such 
that  they  can  be  explained  to  and  defended  in  Parlia- 
ment, anrl  that  their  fitness  may  be  brought  home  to 
the  conviction  of  the  nation."  In  this  system,  her 
Majesty  proceeds  to  point  out,  she  has  an  advantage  of 
which  the  Emperor  of  the  French  is  deprived:  "I  can 
allow  my  policy  free  scope  to  work  out  its  own  conse- 
quences, certain  of  the  steady  and  consistent  support 
of  my  own  people,  who,  having  had  a  share  in  determin- 
ing my  policy,  feel  themselves  to  be  identified  with  it."  " 


'  The  quotations,  in  the  seven 
preceding  paragraplis,  are  taken 
from  a  paper  by  the  Rt.  Hon.  W.  E. 
Gladstone  with  the  fanciful  title  of 
"  Kin  beyond  the  Sea,"  first  pub- 
lished in  the  "  North  American  Re- 
view" for  Sept.-Oct.  1878,  (and 
afterwards  included  in  his  "Glean- 
ings of  Past  Years,"  vol.  i.  pp.  203- 
248)  which  met  my  eye  after  the 
previous  pages  were  written.    The 


intrinsic  value  of  Mr.  Gladstone's 
observations  upon  the  question  un- 
der discussion,  and  their  complete 
accord  with  the  opinions  advanced 
in  the  text,  induced  me  to  epitomize 
them,  in  this  form,  as  corroborating 
my  own  exposition  of  the  subject. 
The  whole  paper  is  deserving  of 
careful  study. 

"  Martin,    Life    of    the    Prince 
Consort,  vol.  iii.  pp.  397,  398. 


u 


PARLIAMENTARY  GOVERNMENT  IN  ENGLAND. 


23 


jommis- 

iientary 
t  of  her 

to  the 
n  these 
jlic  has 
ideas  of 
5  to  the 
fference 
govern- 

certain 
ower  of 
ancil  of 
to  meet 

arrived 
They 
le  steps 
sordance 
Iso  such 
1  Parlia- 
lome  to 
em,  her 
ntage  of 
:  "I  can 
1  conse- 

support 
etermin- 
dthit."" 


jladstone's 
uestion  un- 
lY  complete 
s  advanced 
o  epitomize 
rroborating 
he  subject, 
^serving  of 

bhe  Prince 
,398. 


From  the  secrecy  which  properly  enshrines  the  inter- 
course between  the  Crown  and  its  advisers,  it  rarely 
happens  that  the  opinions  or  conduct  of  the  sovereign 
in  goveniuiental  matters  becouie  known  to  the  public 
at  large.  Accordingly,  those  functions  of  the  Crown 
which  are  most  beneficial  in  their  operation  are  apt  to 
be  undervalued  ;  because,  whilst  strictly  constitutional, 
they  are  hidden  froui  the  public  eye.  But  no  atten- 
tive reader  of  English  political  history,  since  the  acces- 
sion of  Queen  Victoria,  can  fail  to  have  noted  frequent 
instances  of  timely  3»tion,  wise  interposition,  or  valu- 
able suggestion  upon  afl'airs  of  state,  which  have  ema- 
nated from  her  Most  Gracious  Majesty  or  her  consort; 
and  which,  being  approved  and  endorsed  by  the  exist- 
ing administration,  have  contributed  largely  to  the  pro- 
motion of  the  public  good.  In  Martin's  Life  of  Prince 
Albert,  especially,  repeated  mention  is  made  of  valuable 
memorandums  upon  public  questions,  prepared  by  the 
queen,  or  by  the  prince  on  her  behalf,  and  submitted 
for  the  consideration  of  ministers.  These  papers  were 
often  of  great  service,  and  sometimes  contained  the 
germs  of  practical  administrative  reforms,  which,  sooner 
or  later,  were  advantageously  accomplished.  And  this 
was  in  addition  to  the  unceasing  exercise,  by  the 
povereign,  of  that  "  constitutional  criticism "  over  all 
state  papers,  already  referred  to ;  and  which  on  one 
memorable  occasion  (during"  the  Trent  affliir  "  in  1861) 
led  to  the  modification  of  terms  of  remonstrance  ad- 
dressed in  a  despatch  to  the  United  States  govern- 
ment, and  largely  contributed  to  avert  a  threatened 
rupture  between  Great  Britain  and  America.'' 

These  facts  and  considerations  may  suffice  to  explain 
the  actual  position  and  powers  of  a  British  sovereign, 
under  parliamentary  government. 

^  Martin,  Life  of  the  Prince  Consort,  vol.  ii.  pp.  433-445  ;  vol.  iii. 
pp.  146,  382. 


i 


m» 


i 


01(1  sys- 
tem of  co- 
lonial tro- 


CHAPTER  II. 

THE   ArrLICATION  OF  PAllLIAMEXTARY  GOVERXJilENT   TO 
COLONIAL    LNSTITUTIONS. 

Let  us  now  turn  onr  attention  to  tlio  colonics  of  Great 
Britain,  and  briefly  examine  the  reasons  which  led  to 
the  introduction  therein  of  the  political  system  of  the 
mother  country.  This  will  lead  us  to  consider  the  man- 
ner in  which  parliamentary  government  has  been  ap- 
plied to  colonial  institutions. 

Until  within  the  past  forty  years,  the  administration 
of  public  afliurs  in  such  of  the  British  Colonies  as  were 
vermuent.  in  the  possession  of  representative  institutions  was  un- 
deniably in  an  unsatisfactory  state.  An  irresponsible 
system  of  government  prevailed  therein,  which  was 
analogous  to  the  method  of  administration  in  England 
under  the  personal  rule  of  the  house  of  Stuart. 

Under  this  polity,  the  responsibility  of  government 
was  centred,  absolutely  and  exclusively-  in  the  gover- 
nor. He  was,  indeed,  assisted  by  an  executive  council, 
nominated  by  the  Crown,  and  selected  from  the  princi- 
pal administrative  officers  in  the  colony.  But  these 
fiiiictionaries,  though  accountable  to  the  Crown  for 
the  faithful  discharge  of  their  respective  official  duties, 
were  not  answerable,  either  individually  or  collectively, 
for  the  result  of  the  advice  they  might  offer  to  the 
governor.  He  consulted  them  at  his  own  discretion ; 
and  the  responsibility  of  government  in  no  way  devolved 
upon  them.     This  rested  solely  upon  the  governor  j  and 


NT  TO 

f  Great 
I  led  to 
I  of  the 
iG  man- 
een  ap- 

stration 
as  were 
was  un- 
)onsible 
cli  was 
Ingland 

rnment 

gover- 
30imcil, 

princi- 

these 

rvn    for 

duties, 
ctively, 

to  the 
retion ; 
ivolved 
Dr ;  and 


PARLIAMENTARY   GOVERNMENT. 


25 


he  was  responsible  only  to  the  supreme  authority  of 
the  empire." 

Complaints  of  misf!:overnment,  and  of  the  want  of  ncfcctsof 

....  till'  old 

harmony  between  the  executive  and  legislative  bodies,  colonial 
in  the  principal  colonies  of  Great  Britain,  were  frequent ;  ^^'*"-''"' 
and  the  necessity  for  some  reform  in  colonial  adminis- 
tration was  obvious  and  unquestionable,  though  the 
sagacity  of  British  statesmen  was  severely  tried  to  find 
an  adequate  solution  of  this  perplexing  and  difficult 
problem.  It  was  during  the  administration  of  Lord 
Melbourne  (in  the  years  1835  to  1841)  that  a  remedy 
was  first  devised  for  colonial  grievances,  whereby  the 
prevailing  discontents  in  the  colonies  were  removed. 
This  was  effected  by  the  wise  adaptation  of  British  con- 
stitutional principles  to  colonial  polity;  and  by  the 
gradual  introduction  into  each  dependency,  according 
to  its  political  condition  and  circumstances,  of  the  prin- 
ciple of  self-government  in  all  matters  of  local  concern, 
coupled  with  the  unreserved  application,  in  regard  to 
the  same,  of  the  constitutional  maxim  of  ministerial 
responsibility  to  the  colonial  assembly.^ 

During  the   period  of  transition  from  the  paternal  introduc- 

,  tion  of  re- 

government  of  the  colonial  office  in  London  to  the  es-  sponsible 
tablishment  of  self-government  in  British  North  America  ment™ 
and  in  Australia,  the  office  of  her  Majesty's  secretary 
of  state  for  the  colonies  was  held,  first,  by  Lord  John 
Russell,  from  1839  to  1841  ;  and  afterwards  in  succession, 
from  1841  to  1852,  by  Lord  Stanley,  by  Mr.  Gladstone, 
and  by  Earl  Grey.  So  that  all  these  eminent  statesmen, 
representing  both  political  parties,  shared  in  the  work  of 
extending  to  the  most  distant  parts  of  the  empire,  the 
full  benefits  of  the  British  Constitution. 

The  change  to  "  responsible  government "  was  one 

"  Votes  and  Proc.  Loof.  Assembly,         •»  Mills,   Colonial  Constitutions, 
New  South  Wales,  1859-60,  vol.  i.     lutrod,  p.  xlviii. 
p.  1130. 


\i 


111 


26 


PARLIAMENTARY  GOVERNMENT 


At 


Local  self- 
govern- 
ment. 


which  required  no  legislative  process  to  effect  or  ratify 
it.  It  scarcely  necessitated  any  alteration  in  the  go- 
vernor's "  Commission  and  Instructions ; "  although,  as 
the  new  system  has  matured,  those  organic  instruments 
of  colonial  government  have  been  occasionally  modified, 
so  as  to  bring  them  into  more  perfect  accord  with  the 
existing  polity.  The  only  definite  change  in  the  royal 
instructions  upon  the  introduction  of  responsible  go- 
vernment into  a  colony  was  to  provide  that  henceforth 
the  members  of  the  Executive  Council  should  be  ap- 
pointed with  the  understanding  that,  upon  their  ceasing 
to  retain  the  confidence  of  the  popular  branch  of  the 
legislature,  they  must  resign  office.  But,  in  connection 
with  this  virtual  transfer  of  power  from  an  irresponsi- 
ble to  a  responsible  executive,  the  imperial  govern- 
ment surrendered  the  exercise  of  local  patronage  ;  and 
appointments  to  places  of  power  and  profit  in  the  colony 
passed  from  the  hands  of  the  governor  and  the  home 
authorities  into  those  of  the  Executive  Council,  or  "re- 
sponsible "  ministry. 

At  the  first  introduction  of  this  new  method  of  ad- 
ministration, it  was  frequently  necessary  for  the  secre- 
tary of  state  to  advise,  admonish,  and  instruct  the 
queen's  representative  in  the  several  colonies,  in  the 
application  of  the  novel  principles  of  parliamentary 
government  to  colonial  use ;  and  to  assist  in  determin- 
ing controversies  between  the  governor  and  his  advisers, 
or  between  the  local  executive  and  the  legislative  bodies. 
But  gradually,  as  the  colonies  which  were  intrusted  with 
pov  ers  of  local  self-government  began  to  appreciate  the 
value  of  the  irift  and  the  oblio:atious  which  it  entailed 
upon  them  to  use  their  freedom  with  wisdom  and  mutual 
forbearauce,  ithas  become  the  polity  of  the  impeiial  go- 
vernment to  withdraw  from  any  interference  with  colo- 
iiial  legislation  and  administration  in  matters  of  local 
concern. 


ir  ratify 
the  go- 
)iigli,  as 
^uinents 
lodified, 
vith  the 
le  royal 
ible  go- 
iceforth 
1  be  ap- 
ceasing 
L  of  the 
inection 
esponsi- 
govern- 
;c  ;  and 
3  colony 
e  home 
or  "re- 

of  ad- 
sec  re- 
let  the 
in  the 
icntary 
terniin- 
dvisers, 
bodies. 
1  with 
ite  the 
ntailed 
mutual 
ial  go- 
li  colo- 
f  local 


L'( 


ii 


UNDER  COLONIAL  INSTITUTIONS. 


27 


The  mother  conntry,  however,  still  retains  the  right  to 
interpose,  —  either  by  advice,  remonstrance,  or,  if  need 
be,  by  active  measures  of  control, —  whenever  the  powers 
of  self-government  are  attempted  to  be  exercised,  by 
any  colony,  in  an  unlawful,  unconstitutional,  or  oppres- 
sive manner.  "  The  whole  question  of  the  relations  of 
the  imperial  authority  to  the  representative  colonies  is 
one  of  great  difficulty  and  delicacy.  It  requires  con- 
summate prudence  and  statesmansliip  to  reconcile  the 
metropolitan  supremacy  with  the  worthy  spirit  of  colo- 
nial independence.  As  a  matter  of  abstract  right,  the 
mother  country  has  never  parted  with  the  claim  of 
ultimate,  supreme  authority  for  the  imperial  legisla- 
ture. If  it  did  so,  it  would  dissolve  the  imperial  tie, 
and  convert  the  colonies  into  foreign  and  independent 
states.""^ 

The  only  instance  wherein  it  would  seem  that  im- 
perial intervention  and  control  had  been  formally  sur- 
rendered is  in  the  case  of  the  colonies  which  are  now 
included  as  provinces  in  the  Dominion  of  Canada,  and 
in  reference,  especially,  to  local  legislation  in  those 
provinces.  By  the  British  North  America  Act,  1867, 
section  90,  it  is  provided  that  the  ultimate  authority 
for  determniing  upon  the  expediency  of  giving  or 
withholding  the  Royal  assent  to  bills  passed  by  the  pro- 
vincial legislatures,  shall  be  the  governor-general  of 
Canada,  and  not  the  queen.  This  declaration  of  the 
Imperial  Parliament  has  been  construed  by  the  impe- 
rial uovernment  itself  to  be  a  virtual  relinquishment 
of  the  right  to  interfere  with  provincial  legislation 
under  anv  circumstances  ;  and  as  vesting;  in  the  Domi- 
nion  governor  in  council  an  absolute  and  unlimited  re- 
sponsibility for  deciding  thereupon.'^ 


Imperial 
control. 


IIow  cxor- 
cisod  in 
Canada. 


«  "  Ilistoricus  "  (Sir  W.  Vernou-IIarcourt)  in  the  '*  London  Times," 
1  June,  187!),  p.  10. 
**  See  post,  p.  330. 


C' 


28 


PARLIAMENTARY  GOVERNMENT 


Adapta- 
tion of 
parliamen- 
tary go- 
vernment 
to  an  inde- 
pendent 
commu- 
nity. 


I 


And  here  it  may  be  well  to  remark  that  the  gra- 
dual relaxation,  by  the  mother  country,  of  the  tie  of 
political  dependence  on  the  central  authority  of  the 
empire,  in  respect  to  any  British  colony,  or  even  the 
actual  sundering  of  connection  between  them,  does 
not  necessarily  involve  the  overthrow  or  abandonment 
of  the  system  of  parhamentary  government  which, 
after  the  model  of  the  parent  state,  has  been  esta- 
blished therein.  That  system  might  be  suitably  retained, 
on  account  of  its  obvious  advantao;es,  lonii;  after  the 
control  of  the  mother  country  has  been  relaxed,  or 
even  withdrawn. 

But  in  order  to  secure  to  a  colon v  the  benefit  of 
British  institutions,  after  the  relinquishment  of  the 
rio;ht  to  interfere  with  its  local  self  government,  the 
limits  of  authority  appropriate  to  the  governor  should 
be  well  defined  and  carefully  secured.  To  ascer- 
tain those  limits  and  to  define  such  powers,  we  must 
study  the  complex  phenomena  of  the  British  Constitu- 
tion. In  that  admiral)le  system,  as  settled  hy  constitu- 
tional usage  within  the  past  fifty  years,  there  is  —  as 
we  have  sought  to  show  in  the  preceding  pages  —  a 
practical  recognition  of  the  authority  which  appertains 
to  the  Crown  in  a  limited  monarchy;  controlled  by 
the  unreserved  assertion  and  exercise  of  the  principles 
of  ministerial  responsibility,  and  of  t.'e  ultimate  su- 
premacy of  Parliament.  These  several  principle  >  must 
each  be  maintained  inviolate,  and  in  harmonious  action, 
wherever  it  is  sought  to  perpetuate,  in  any  land  under 
whatsoever  political  conditions,  the  blessings  of  consti- 
tutional government.  And,  even  in  the  supposable 
case  of  the  amicable  separation  of  a  colony  from  the 
parent  state,  the  superior  advantages  of  possessing  insti- 
tutions based  upon  the  sta])le  foundation  of  a  limited 
monarchy,  and  similar  in  priii'^lple  to  those  of  England, 
would  naturally  induce  the  young  counuunity  to  retain, 


1 


UNDER  COLONIAL  INSTITUTIONS. 


29 


he  gra- 
)  tie  of 

of  the 
veil  the 
11,  does 
onment 

which, 
ill  esta- 
itained, 
'ter  the 
xed,  or 

lefit  of 

of  the 

lit,  the 

should 

ascer- 

c  must 

onstitu- 

3iistitu- 

is  —  as 

;cs  —  a 

icrtaiiis 

led  by 

nciples 

ite  su- 

1  must 

action, 

under 
consti- 
)osahle 
im  the 
j;  iusti- 
i  mi  ted 
^;^laiid, 
retain, 


with  as  little  alteration  as  possible,  the  most  prominent 
features  of  a  polity  that  has,  for  so  many  generations, 
preserved  freedom  without  lawlessness  to  the  British 
race. 

These  considerations  have  led  to  the  present  attempt 
to  depict,  in  the  first  place,  the  actual  position  of  the 
sovereign  in  connection  with  parliamentary  institu- 
tions, in  the  mother  country,  and  then  to  point  out  the 
corresponding  position  and  functions  of  a  constitutional 
governor,  in  self-governing  coiiimunities  within  the 
limits  of  the  British  Empire. 

There   is,  no  doubt,  a    o-eneral   impression   abroad,  Factions 
amongst  persons  wlio  have  not  bestowed  mucli  thought  tutionui 
upon  the  matter,  that  the  governor  of  a  British  colony,  s«^*^''°°''- 
or  province,  is  little  less  than  an  ornamental  appendage 
to  our  political    system ;    necessary,  to    fulfil    certain 
ceremonial  duties ;  useful,  to  represent  the  community 
at  large  upon  public  occasions,  or  as  the  mouth-piece 
of  public  sentiment ;  and  of  unquestionable  service  to 
societ}',  in    the   discharge  of  a   dignified    and   liberal 
hospitality,  to  Ix'  freely  extended  to  whoever  may  be 
a  suitable  reci])ient  of  viceregal  favour,  without  distinc- 
tion of  creed  o:  party. 

But  if  this  were  all  that  we  had  a  right  to  expect 
from  a  governor,  it  would  be  quite  insullicient  to  jus- 
tify the  pre-eminence  which  is  attached  to  his  office 
as  a  representative  of  the  Crown.  Without  underrat- 
ing for  a  moment  the  incalculable  advantages  which 
society  and  the  state  derive  from  the  fulfilment  of  the 
duties  above  enumerated,  by  men  in  exalted  positions, 
—  assisted  by  the  ladies  of  their  household,  —  such  cere- 
monial observances  and  festivities  might,  without  much 
loss  of  dignity  or  efficiency,  be  assigned  to  cabinet 
ministers,  and  other  prominent  ofticers  of  government, 
of  adequate  rank  and  fortune. 

The  governor  of  a   British   dependency,  however, 


\ 


/ 


/ 


/ 


'I 


f  >m 

it 


30 


PARLIAMENTARY  GOVERNMENT 


within  the  limits  prescribed  by  his  commission,  is 
essentially  a  political  officer ;  and  the  necessity  for  his 
office  must  be  estimated  according  to  the  gravity  and 
importance  of  the  duties  allotted  to  him  in  the  body- 
politic.  If  his  duties  in  that  relation  are  mainly  for- 
mal, and  his  political  functions  of  small  account,  the 
continuance  of  the  office  will  be  ajit  to  be  regarded  as 
.  an  expensive  luxury,  which  cannot  be  justified  by  an 
economical  people,  or  endured  in  an  age  which  is  into- 
lerant of  shams. 

But  if,  on  the  other  hand,  a  constitutional  governor 
is  actually  invested  with  an  authority  Mdiicli  is  emi- 
nently capable  of  being  employed  for  the  public  good ; 
and  if  he  fills  a  place  of  trust,  wherein  he  is  competent, 
upon  fitting  occasions,  to  interpose  to  guard  and  pro- 
tect the  political  liberties  of  those  over  whom  he 
presides,  —  then  it  becomes  the  interest  as  well  as  the 
duty  of  all  good  citizens  to  respect  his  office,  and  to 
strengthen  and  uphold  him  in  the  exercise  of  its  lawful 
prerogatives. 

The  gradual  but  vital  change  which  the  present 
generation  has  witnessed  in  the  relations  of  executive 
authority,  in  the  self-governing  colonies  of  the  British 
empire,  to  the  people,  in  their  local  legislatures,  has 
led  to  the  impression  that  no  political  duties  remain  to 
be  fulfilled  by  a  constitutional  governor,  save  only 
such  as  are  of  a  formal  and  ceremonial  kind. 

This  idea  has  been  fostered  by  the  wide-spread  but 
most  erroneous  assumption  that  the  sovereign  herself, 
whose  commission  the  governor  holds,  has  ceased  to  be 
to  any  appreciable  extent  a  power  in  the  state.  We 
have  shown  the  falsity  of  this  belief,  and  have  en- 
deavored to  point  out  some  of  the  most  prominent 
benefits  which  accrue  to  a  nation  from  the  existence 
and  operation  of  the  monarchical  element  in  its  politi- 
cal constitution. 


^V- 


//''l 


^t^:  c«i</v^ 


as 


UNDER  COLONLiL  INSTITUTIONS. 


31 


on,  IS 
for  his 
y  and 

body- 
ly  for- 
it,  the 
ded  as 

by  an 
is  into- 

vernor 
is  emi- 

good ; 
petent, 
id  pro- 
3m   he 

as  the 
and  to 

lawful 

)resent 
cutive 
ritish 
s,  has 
lin  to 
only 

id  but 
lerself, 

to  be 
We 
jQ  en- 
ninent 
stence 

politi- 


In  the  various  dependencies  of  the  British  empire  Colonial 
which  are  in  the  enjoyment  of  representative  institu-  "lona."" 
tions,  their  respective  constitutions  are  all,  with  more 
or  less  distinctness,  framed  on  the  model  of  the  parent 
state.  The  sovereign,  the  House  of  Lords,  and  the 
House  of  Commons,  are  severally  reproduced,  in  so  far 
as  the  altered  circumstances  of  colonial  dependence 
"will  permit,  by  a  governor,  who  represents  the  Crown ; 
by  a  legislative  council  or  senate,  —  either  nominated 
by  the  Crown  or  chosen  by  election,  —  which  is  in- 
tended to  exercise  "  the  legislative  functions  of  the 
House  of  Lords;"  and  by  a  popular  chamber,  which 
possesses,  within  the  colony,  "  the  rights  and  powers  of 
the  House  of  Commons." " 

In  every  British  colony  of  adequate  extent  and  im-  Tho  go 
portance,  the  personal  authority  of  the  Crown  is  re- 
presented and  monarchical  functions  discharged  by 
a  governor,  who  is  nominated  to  his  office  by  the 
sovereign  in  council,  and  appointed  by  letters-patent 
under  the  Great  Seal ;  his  jurisdiction  and  powers 
being  defined  by  the  terms  of  his  commission,  and 
by  the  royal  instructions  which  accompany  the 
same. 

A  governor  so  appointed  is  empowered,  by  his  com- 
mission, "  to  do  and  execute  all  things  that  shall  be- 
long "  to  his  office,  and  be  appropriate  to  the  trust 
confided  to  him  by  the  royal  instructions,^  then  or  after- 
wards to  be  communicated  to  him  through  one  of  her 
Majesty's  principal  secretaries  of  state,  who  is  the  consti- 


'li'  i 


vernor. 


*  This  distinction  between  the 
constitutional  rights  and  powers  of 
the  two  houses  is  taken  from  a  for- 
mal definition  of  the  constitution  of 
Victoria,  which  was  accepted  by 
the  Crown  and  by  both  liouses  of 

Eirliament  in  that  colony.  (Victoria 
eg.    Assembly   Votes    and    Proc. 
1877-78,  vol.  1.  pp.  t02,  289.) 
'  The  lloyal  Instructions  are  di- 


rectly referred  to  in  the  British 
North  America  Act,  1867,  sec.  o5, 
and  in  the  South  Africa  Act,  1877, 
as  a  part  of  the  constitutional  law, 
for  the  guidance  of  a  governor. 
They  are  issued  upon  the  responsi- 
bility of  the  ministers  of  the  Ciown, 
and  especially  of  the  secretary  of 
state  for  the  colonies. 


32 


PARLIAMENTARY  GOVERNMENT 


tutional  mouthpiece  of  the  Crown.  He  is  authorized 
to  exercise  the  lawful  powers  and  prerogatives  of 
the  Crown,  in  assembling,  proroguing,  and  dissolving 
the  colon ifil  parliament ;  to  give  or  withhold  the  royal 
assent  to  bills  passed  by  the  parliament ;  or  to  reserve 
them  for  the  signification  of  the  royal  pleasure,  pursu- 
ant to  his  instructions  from  the  Crown.  lie  is  empow- 
ered to  appoint  to  office  all  ministers  of  state,  and  other 
public  officers  in  the  colony,  and  upon  sufficient  cause  to 
suspend  or  remove  them  from  office.  He  is  authorized, 
under  certain  restrictions,  to  administer  the  preroga- 
tive of  mercy,  by  the  reprieve  or  pardon  of  criminal 
offenders  within  his  jurisdiction ;  and  to  remit  fines 
and  penalties  due  to  the  Crown.  All  moneys  to  be 
expended  for  the  public  service  are  issued  from  the 
treasury,  under  the  governor's  warrant.  And  further- 
more, it  is  expressly  declared  that,  'Mf  any  thing 
rhould  happen  which  may  be  r  the  advantage  or 
security  of  the  colony,  and  is  not  provided  for  in  the 
governor's  connnission  and  instructions,  he  may  take 
order  for  the  present  therein."  ^ 

It  is  true  that  the  governor  of  a  colony  is  not  a  vice- 
roy, and  that  unlimited  sovereign  authority  is  not  dele- 
gated to  him.  He  cannot  exercise  all  the  prerogatives 
of  the  Crown,  but  only  such  as  are  expressly  or  im- 
pliedly included  within  the  scope  of  his  con- .nission. 
The  lawful  extent  of  a  governor's  powers  has,  in  re- 
peated instances,  been  ascertained  and  determined  by 
courts  of  law.''  Nevertheless,  there  is  a  general  de- 
volution, to  every  colonial  governor,  of  so  m.uch  of  the 
authority  of  the  Crown  as  may  be  necessary  for  the 
purpose  of  administering  the  government  of  the  co- 
lony over  which  he  is  placed  by  the  sovereign,  whose 


B  Col.  RojT.  1870,  c.  2.  pazine  (Xov.  1861),  vol.  12,  pp.  170- 

^  See  Broom, Constitutional  Law,     185. 
pp.  623-1350.     And  the   Law  Ma- 


UNDER  COLONIAL  INSTITUTIONS. 


33 


horized 
ives   of 
5solving 
e  royal 
reserve 
,  pursu- 
eiiipow- 
Lcl  other 
^ause  to 
horized, 
ireroga- 
n'imiual 
lit  fines 
s  to  be 
'om  the 
further- 
Y   thing 
tage    or 
:  in  the 
ay  take 

b  a  vice- 
lot  dele- 
oo-atives 
or  im- 
nission. 
,  in  re- 
ined by 
eral  de- 
of  the 
for  the 
the  00- 
i,  whose 

2,  pp.  170- 


vcrnor. 


1 


office  and  authority  he  represents.  Pursuant  to  his 
commission  and  the  accompanying  instructions,  he  The  go- 
becomes  within  the  hmits  assigned  to  him  the  em- 
bodiment and  expression  of  the  monarchical  element 
in  the  colonial  polity,  so  far  as  that  element  can  find 
a  constitutional  channel  for  its  exercise  under  parlia- 
mentary government.  The  office  of  governor  is  as 
much  a  constituent  part  of  the  constitution,  in  every 
colony,  as  is  that  of  either  of  the  other  branches  of 
the  local  legislature.  A  constitutional  governor  is  not 
merely  the  source  and  warrant  of  all  executive  autho- 
rity within  his  jurisdiction  :  he  is  also  the  pledge  and 
safeguard  against  all  abuse  of  power,  by  whomsoever 
it  may  be  proposed  or  manifested  ;  and  to  this  end, 
he  is  entrusted  with  the  maintenance  of  certain  rights 
and  the  performance  of  certain  duties  which  are  essen- 
tial to  the  welfare  of  the  whole  community.  And,  while 
he  may  not  encroach  upon  the  rights  and  privileges  of 
other  portions  of  the  body-politic,  he  is  equally  bound 
to  preserve  inviolate  those  which  appertain  to  his  own 
office  ;  for  they  are  a  trust  which  he  holds,  in  the  name 
and  on  the  behalf  of  the  Crown,  for  the  benefit  of  the 
people. 

Should  a  governor  exceed  his  rightful  powers,  or 
commit  any  act  to  which  exception  could  be  justly 
taken,  an  appeal  is  always  open  to  the  sovereign, 
through  the  secretary  of  state,'  and  to  the  Imperial  Par- 
liament, which  is  the  grand  inquest  of  the  nation  for 
the  redress  of  all  grievances. 

But  a  governor  is  not  personally  responsible  to  the 
colonial  parliament  or  to  any  local  tribunal ;  save  only 
in  respect  to  civil  or  criminal  liability  which  he  may 
have  incurred  for  personal  acts  of  wrong-doing  conimit- 
ted  while  holding  the  royal  commission,  and  wherein 


JT 


'  Col.  Reg.  1879,  c.  7,  sec.  6. 


34 


PARLIAMENTARY  GOVERNMENT 


''!! 


!lil 


the  courts  of  law  may  be  capable  of  affording  redress 
or  of  awarding  pimisliment.'' 
Keseryed        Throndiout  the  British  empire,  —  even  in  colonies 

iini)erial  "^  ^         ' 

autiioiity.  where  self-government  has  been  conceded  to  the  fullest 
extent  compatible  with  the  maintenance  of  imperial 
supremacy,  —  there  is  a  reservation  of  the  paramount 
authority  of  Parliament,  and  of  the  right  of  every 
.  British  subject  to  appeal  to  that  tribunal.  But  while 
the  ultimate  control,  alike  over  colonial  and  imperial 
administration,  is  vested  by  the  Constitution  in  the 
Imperial  Parliament,  which  is  at  all  times  ready  to 
listen  to  complaints  of  an  undue  exercise  of  power  on 
the  part  of  any  minister  of  the  Crown,  that  supreme 
authority  may  be  constitutionally  invoked  only  in 
extreme  cases,  and  enforced  only  when  it  is  indis- 
pensably necessary  to  maintain  the  integrity  of  the 
empire.'' 

Moreover,  certain  prerogatives  of  the  Crown  are  suit- 
ably reserved,  in  every  colony,  to  the  direct  and  immedi- 
ate expression  of  the  royal  pleasure  thereon.  The  powers 
so  reserved  differ,  according  to  the  position  and  circum- 
stances of  the  particular  colony ;  but  they  invariably 
include  the  abstract  right  of  dealing  with  all  colonial 
legislation,  and  of  disallowing  such  acts  as  may  be 
deemed  objectionable,  or  in  direct  opposition  to  imjDe- 
rial  policy.'  Sometimes,  colonial  laws  which,  for  defect 
in  form  or  substance,  might  otherwise  need  to  be  disal- 
lowed, are  remitted  to  the  colony  wherein  they  were 


^  See  Forsyth,  Constitutional 
Cases,  pp.  84-88  ;  liaynes,  Stu- 
dent's Leading  Cases,  pp.  15-2;l 
And  see  tlie  Imperial  Act  11  Wil- 
liam III.  c.  12  (which  is  still  in 
force),  "  to  punish  Governors  of 
Plantations  in  this  kingdom  for 
crimes  by  them  committed  in  the 
Plantations;"  also,  4'2  Geo,  III. 
c.  85;  and  the  Act  13  Geo.  III. 
0.  03,  sec.  39.     And  see  a  memo- 


randum by  the  Marquis  of  Xor- 
manby,  governor  of  New  Zealand, 
to  the  premier  of  the  colony,  dated 
June  17,  1878,  in  the  New  Zealand 
Gazette  of  June  21,  1878. 

^  See  Secretary  Cardwell's  de- 
.spatch  to  Governor  Eyre,  dated 
Dec.  1,  18G5,  in  Commons  Papers 
(on  Jamaica),  1866,  vol.  li.  p.  250; 
Forsvth's  Cases,  p.  21. 

'  'Col.  Keg.  1878,  c.  3. 


ing 


UNDER  COLONIAL  INSTITUTIONS. 


35 


redress 

colonies 
)  fullest 
mperial 
amount 
every 
it  while 
mperial 

in  the 
;ady  to 
wer  on 
upreme 
)nly  in 
;   indis- 

of  the 

ire  suit- 

mmedi- 

powers 

circum- 

ariably 

olonial 

nay  be 

impe- 

defect 

e  disal- 

y  were 

of   Nor- 

Zealaud, 

ly,  dated 

Zealand 

ell's  de- 
e,  dated 
s  Papers 
.  p.  250; 


enacted;  accompanied  by  a  despatch  from  the  secretary 
of  state  for  the  colonies,  suggesting  their  modification 
or  repeal."  The  judicial  prerogative  of  the  Crown,  or 
the  right  of  determining  in  the  last  resort  all  contro- 
versies between  subjects  in  every  part  of  the  empire, 
has  been  universally  reserved,  as  being  one  of  the 
most  stable  safeguards,  and  most  beneficial  acts  of 
sovereign  power."  The  administration  of  the  preroga- 
tives of  mercy  and  of  honour  is  either  reserved  to  the 
Crown  or  is  made  the  subject  of  special  and  limited 
delegation.  Finally,  all  questions  which  involve  the 
relations  of  British  dependencies,  and  consequently  of 
the  United  Kingdom  itself,  with  foreign  states,  —  the 
formation  of  treaties  and  alliances ;  the  naturalization 
of  aliens  ;  the  declaration  of  war  or  peace,  and,  by  con- 
sequence, all  regulations  affecting  tlie  disposition  or 
control  of  imperial  military  forces,  —  are,  invariably 
and  for  obvious  reasons,  reserved  for  the  direction  and 
control  of  the  parent  state." 

The  governor  of  ever^  British  colony,  as  represent-  Tiie  go- 
ing the  authority  of  the  Crown  therein,  is  appropri- 
ately entrusted  with  the  exercise  of  all  lawful  powers 
of  control  over  all  public  officers,  whether  civil  or  mili- 
tary, within  the  limits  of  his  government ;  and  he  is 
ordinarily  nominated  as  captain-general,  commander-in- 
chief,  and  vice-admiral  therein.^  But,  though  he  may 
be  styled  commander-in-chief,  he  is  not  thereby  in- 
vested, without  a  special  appointment  from  the  sove- 
reign, with  the  command  of  the  regular  forces  in  the 
colony.  In  military  matters,  he  must  act  in  concert 
with  the  officer  in  command  of  the  forces,  who,  in  the 
event  of  the  colony  being  invaded  or  assailed  by  a  fo- 


'I    I 


vcrnor. 


™  Mills,  Col.  Const,  p.  36.  terms   of   the  several  commissions 

"   I  hid.  p.  47.  and  letters-patent  constituting  the 

°  Ibid.  p.  48.  office  of  governor  in  different  col- 

p  lOid.  pp.  24-26.     And  see  the    onies. 


36 


PARLIAMENTARY  GOVERNMENT 


•  ( 


reign  enemy,  and  becoming  the  scene  of  active  military 
operations,  assumes  the  entire  military  control  of  the 
troops.'' 

In  colonies  possessing  responsible  government,  the 
ordinary  control  over  civil  servants — including  their 
nomination,  appointment,  and  removal  from  office  — 
is  practically  vested  in  the  hands  of  the  local  admin- 
istration. Appointments  are  made,  in  such  colonies, 
by  the  governor,  with  the  advice  of  his  executive 
council ;  and  they  do  not  require  confirmauon  by  the 
imperial  gGvernment.  And  the  governor,  acting  by 
and  with  his  council,  possesses  the  absolute  right  of 
suspending  or  dismissing  all  public  servants  who  hold 
office  during  pleasure.''  While  the  governor  is  free  to 
suggest  or  remonstrate  with  his  ministers,  when  re- 
quested to  give  the  sanction  of  the  Crown  in  cases  of 
appointments  or  removals  from  office,  it  is  only  under 
very  exceptional  circumstances  that  he  w^ould  be  justi- 
fied in  disregarding  the  recommendation  of  his  respon- 
sible advisers  on  such  subjects." 

In  the  case  of  offices  not  of  a  political  nature,  it  is, 
however,  highly  inexpedient,  improper,  and  at  variance 
with  the  constitutional  practice  of  the  mother  country 
to  remove  individuals  from  office  from  political  motives, 
or  for  any  cause  other  than  incompetency  or  official 
misconduct.*  But  an  active  interference  in  political 
contests,  in  opposition  to  the  existing  administration, 


1  Col.  Reg.  1879,  sees.  10-20. 
And  see  post,  p.  279. 

'  lUd.  1879,  sees.  4,  30,  63. 

■  Hon.  E.  B.  Chandler's  case 
(New  Brun.swick  Assembly  Jour- 
nals, 1862,  pp.  192-196).  See  Go- 
vernor JMusiTrave's  message  to  the 
Legislative  Council  of  South  Aus- 
tralia, in  reply  to  their  address  re- 
monstrating against  a  certain  ap- 
pointment, in  alleged  violation  of  the 
Civil  Service  Act.    (South  Australia 


Tarl.  Proceed.  1875,  vol.  i.  p.  27.) 
And  see  the  case  of  the  civil  ser- 
vants dismissed  in  Victoria,  in  1878, 
and  the  rebuke  addressed  by  the 
imperial  goverimient  to  Governor 
Bowen,  for  sanctioning  these  dis- 
missals.    {Post,  p.  507.) 

*  Despatch  of  the  Duke  of  Xew- 
castle  to  Governor  Gordon,  of  Feb. 
22,  1802.  (New  Brunswick  Assem- 
bly Journals,  1862,  p.  192.) 


p.  27.) 
civil  ser- 
in 1878, 

by  the 
rovernor 
)ese  (lis- 


UNDER  COLONIAL  INSTITUTIONS. 


37 


would  constitute  a  sufficient  offence  to  justify  the  re- 
moval of  any  public  officer/' 

In  colonies  wherein  responsible  government  is  esta-  Governor 
Wished,  the  administration  of  public  aft'airs  is  conducted,  cii. 
as  elsewhere,  through  the  agency  of  a  governor  and  an 
executive  council.  But,  while  the  outward  organization 
remains  unchanged,  effiict  is  usually  given  to  the  sys- 
tem of  ministerial  responsibility,  when  it  is  introduced 
into  any  colony,  by  means  of  special  instructions,  au- 
thorizing the  same,  which  are  transmitted  to  the  go- 
vernor by  her  Majesty's  colonial  secretary/ 

As  a  practical  result  of  such  instructions,  it  is  cus- 
tomary to  provide  that,  under  the  new  polity,  when 
formally  introduced  into  a  colony,  the  executive  coun- 
cil shall  not  be  assembled,  as  under  the  old  system,  for 
the  purpose  of  consultation  and  discussion  with  the  go- 
vernor, but  that  ministers  shall  be  at  liberty  to  delibe- 
rate on  all  questions  of  ministerial  policy  in  private, 
after  the  example  of  the  cabinet  council  in  England ; 
and  that  the  exevjutive  council,  privy  council,  or  by 
whatsoevei  name  the  official  council  of  ministers  is 
known,  shall  only  be  convened  for  purposes  required 
by  law,  or  when  it  may  be  necessary  to  hold  consulta- 
tions unconnected  with  party  politics.''' 

The  practice  in  Canada,  for  a  number  of  years,  has 
been  that  the  business  in  council  is  done  in  the  absence 
of  the  governor.     On  very  exceptional  occasions,  the 


"  Earl  Grey's  despatch  to  the 
governor  of  Jsova  Scotia,  of  Nov.  13, 
1818;  and  Duke  of  Newcastle's  de- 
spatch, in  18(50,  in  the  case  of  Mr. 
P.  S.  Hamilton,  of  Nova  Scotia, 
cited  in  Todd,  Pari.  Govt.  vol.  i.  p. 
391,  11.  In  South  Australia,  offi- 
cers of  the  civil  service  are  expressly 
enjoined,  by  regulation,  under  the 
Civil  Service  Act,  to  take  no  part 
in  political  affairs  beyond  the  exer- 
cise of  the  elective  franchise.     (S. 


Austral.  Assembly  Votes  and  Proc. 
1877,  p.  59.) 

"  See  ante,  p.  26. 

^  Comm  -ins  Papers,  1860,  vol. 
xlvi.  p.  244.  In  the  early  days  of 
responsible  government  in  Canada, 
the  governor  used  to  debate  with 
his  ministers  in  council ;  bui  this  ir- 
regular proceeding  was  soon  aban- 
doned. (Walrond's  Letters  of  Lord 
Elgin,  p.  116.) 


M| 


lil 


111 


Eosponsi- 
l)k'  go- 
venuiient. 


38 


PARLIAMENTAUY  GOVERNMENT 


governor  may  preside ;  but  these  would  occur  only  at 
intervals  of  years,  and  'vvould  probably  be  for  the  pur- 
pose of  taking  a  formal  decision  on  some  extraordinary 
matter,  and  not  for  deliberation  thereon.  The  mode  in 
which  business  is  done  is  by  report  to  the  governor 
of  the  reconnnendations  of  the  council  sitting  as  a 
committee,  sent  to  the  governor  for  his  consideration, 
discussed,  when  necessary,  between  the  governor  and 
the  i)remier,  and  made  operative  by  being  marked 
"approved"  by  the  governor.  This  system  is  in  ac- 
cordance with  constitutional  principles."  But  every 
governor  is  invested  by  the  royal  instructions  with 
ample  powers  that  "  if,  in  any  case,"  he  should  "  see 
sufficient  cause  to  dissent  from  the  opinion  of  the 
major  i)art  or  of  the  whole  "  of  his  executive  council, 
or  privy  council,  as  the  case  may  be,"  it  shall  be  com- 
petent "  for  him  to  execute  the  functions  and  authori- 
ties vested  in  him  by  his  commission  from  the  Crown, 
and  by  his  instructions,  as  aforesaid,  "  in  opposition  to 
such  their  opinion  ;  "  provided  only  that  it  shall  be 
always  competent  to  any  member  of  his  council  to 
record  at  length,  on  tlie  council  minutes,  "  the  grounds 
and  reasons  of  any  advice  or  opinion  he  may  give 
upon  any  question  brought  under  the  consideration  of 
such  council."  ^ 

The  result  of  the  great  constitutional  reform  in  colo- 
nial o'overnment  which  was  eftected  by  the  introduc- 
tion of  ^'  responsible  government,"  is  briefly  this :  that, 
while  the  governor  of  a  colony  under  the  parlia- 
mentary system  remains,  as  formerly,  personally  re- 
sponsible to  the  Crown,  through  the  secretary  of 
state,  for  the  faithful  and   efficient   discharge   of  his 


'  Report  of  Mr.  Edward  Blake,  y  See  the  ordinary  commissions 

minister  of  justice  for  Canada,  Sept.  and  instructions  to  governors,  cited 

5,   1876,  in  Canada   Sess.   Tapers,  post,  p.  85. 
1877,  no.  13,  p.  8. 


mg 


t-  ■ 


UNDER  COLONIAL  INSTITUTIONS. 


39 


high  trust,  in  obedience  to  the  instructions  conveyed  to 
him  for  his  guidance,  the  members  of  his  executive 
council,  who  Jire  his  constitutional  advisers,  now  share 
—  and,  so  far  as  the  colony  is  concerned,  entirely  as- 
sume—  the  responsibility,  which  previously  devolved 
upon  the  governor  exclusively,  of  framing  the  policy 
of  the  local  government ;  of  embodying  the  same  in 
measures  for  the  sanction  of  the  legislature  ;  of  mak- 
ing appointments  to  office  ;  and  of  superintending  and 
controlling  all  public  affairs  through  the  appropriate 
departments  of  state  in  the  colony. 

The  responsibility  of  the  local  administration  for  all 
acts  of  government  is  absolute  and  unqualified.  But 
it  is  essentially  a  responsibility  to  the  legislature, — 
and  especially  to  the  popular  chamber  thereof,  —  whilst 
the  responsibility  of  the  governor  is  solely  to  the  Crown. 
It  is  indispensable  to  the  welfare  and  good  government 
of  the  colony  that  these  separate  responsibilities  should 
never  be  permitted  to  clash  ;  and  the  best  guarantee 
against  the  possible  occurrence  of  such  an  event  is 
to  be  found  in  the  continued  existence  of  the  most  cor- 
dial and  unreserved  harmony  and  co-operation  between 
the  governor  and  his  advisers.^ 

It  is  undoubtedly  incumbent  upon  a  constitutional 
governor  to  co-operate  honourably,  though  in  no  parti- 
san spirit,  with  his  ministers  for  the  time  being,  and 
to  accept  their  advice  on  all  public  matters,  unless  he 
should  see  sufficient  cause  to  justify  him  in  refusing  to 
concur  in  their  recommendations.  On  the  other  hand, 
every  objection  raised  by  the  governor  to  a  policy  or 
proceeding  submitted  for  his  approval,  should  be  con- 
sidered by  his  ministers  with  the  deference  and  respect 
due  to  his  office.     In  the  free  interchange  of  opinion 


m 


'  See  Xew  South  Wales  Leg.  Assembly  Votes  and  Proceed.  1859-60, 
vol.  i.  p.  1130. 


/ 


/ 


Reserved 
powers  of 
a  consti- 
tutional 
governor. 


ifi 


40 


PARLIAMENTARY  GOVERNMENT 


between  those  who  are  equally  concerned  in  the  en- 
deavour to  promote  the  public  good,  it  is  reasonable  to 
suppose  that  a  unity  of  sentiment  would  ultimately 
prevail. 

But,  if  it  should  prove  otherwise,  it  must  be  always 
remembered  that  the  governor  is  not  bound  to  com- 
ply with  the  advice  of  his  ministers.  In  the  event  of 
•  a  recommendation  be'ng  submitted  to  him  that  in- 
volved a  breach  of  the  law,  or  that  was  contrary  to 
express  instructions  received  from  the  Crown,  he  would 
be  obliged  to  refuse  to  sanction  it.  For  no  violation  of 
the  law  could  be  excused  on  the  plea  that  it  was  ad- 
vised by  others  ;  the  governor  must  be  held  personally 
answerable  for  the  same  to  the  imperial  authority,  or 
to  a  court  of  competent  jurisdiction,  taking  cognizance 
thereof;  unless,  indeed,  the  case  should  have  been  one 
of  such  urgent  and  imperative  necessity  as  would  war- 
rant a  departure  from  the  laws  of  the  land,  and  would 
justify  a  subsequent  application  to  Parliament  for  an 
act  of  indenmity. 

In  the  ordinary  exercise  of  his  constitutional  discre- 
tion, a  governor  is  unqvostionably  competent  to  reject 
the  advice  of  his  mmiste.^s,  whenever  that  advice 
should  seem  to  him  to  be  adverse  to  the  public  wel- 
fare, or  of  an  injurious  tendency.  In  such  a  con- 
tingency, if  no  compromise  be  possible,  either  the 
resignation  or  the  dismissal  of  ministers  must  ensue. 
The  governor  must  then  seek  for  other  advisers.  If  he 
succeeds  in  obtaining  a  new  ministry,  who  are  willing 
to  become  responsible  for  his  act  which  led  to  the  re- 
tirement of  their  predecessors,  and  if  the  new  adminis- 
tration is  sustained  by  the  popular  chamber,  there  is 
no  furtlier  difficulty.  But  if  the  local  assembly  refuse 
to  give  their  confidence  to  the  incoming  ministry,  and 
if  a  dissolution  of  parliament  (should  that  take  place) 
fails   to   give    thein    adequate   support,    the  governor 


UNDER  COLONIAL  INSTITUTIONS. 


41 


the  en- 
lable  to 
imately 

always 
to  com- 
ment of 
hat  in- 
rary  to 

would 
tion  of 
vas  ad- 
sonally 
rity,  or 
lizance 
en  one 
Id  w\ar- 

would 
for  an 

disc  re- 
reject 

advice 

ic  wel- 

L   con- 

ir   the 

ensue. 
If  he 

i^illing 

le  re- 
in in!  H- 

ere  is 

'efuse 

%  and 

)lace) 

ernor 


vernor. 


must  either  recede  from  the  position  he  had  taken  in 
the  first  instance  or  retire  from  office.* 

Under  certain  circumstances,  —  as  where  the  point  The  go- 
in  dispute  involved  a  question  of  imperial  policy,  —  the 
governor  would  be  entitled  to  invoke  the  interposition 
of  her  Majesty's  secretary  of  state  for  the  colonies, 
before  surrendering  the  contest.  It  is,  in  fact,  his 
duty  invariably  to  communicate  to  the  secretary  of 
state  any  difference  of  opinion  between  himself  and 
his  ministers  which  involves  the  question  of  his  respon- 
sibility to  the  Crown,  in  connection  with  the  responsi- 
bility of  his  ministers  to  the  local  parliament.  If  the 
Crown  should  decide  against  the  governor,  he  must 
yield  the  point  in  dispute  or  resign.  If  the  Crown 
upholds  him,  the  contest  is  immediately  transferred 
from  the  agent  to  the  principal ;  from  the  governor  to 
the  imperial  authority,  from  whence  his  powers  are 
derived.  In  no  case  is  a  governor  to  be  held  perso- 
nally responsible  to  a  local  parliament  for  his  policy  or 
conduct  in  office.*^ 

Constitutional  usage  will  not  permit  of  any  attempt 
to  affix  upon  the  governor  of  a  colony,  by  either  branch 
of  the  colonial  legislature,  a  direct  personal  responsi- 
bility for  public  acts  of  government :  all  such  responsi- 
bility should  be  assumed  by  his  ministers."  Neither  is 
it  constitutional  for  a  local  legislature  to  pass  a  resolu- 
tion of  censure  upon  a  governor  for  his  conduct  in 
office,  "  unless  as  preliminary  to  an  address  to  the 
Crown  to  remove  an  obnoxious  representative."  "^ 


•  Spo  pus',  c.  4,  pt.  3  ;  and  espe- 
cially /lost,  p.  4;}!>. 

•>  Si'i'  dcsiialolies  between  the 
IMiiniuirt  of  X(triuatil)y  (yoveruor 
of  Ni'vv  Zciilaiid),  and  the  si'crctary 
of  state  for  tii(!  enloiues,  in  Xew 
Zealanil  (ia/.ctte,  1S78,  pp.  !K»!», 
!)•_'(>.  And  sec  Ilcarn,  Government 
of  England,  p.  1J8. 


'  See  post,  p.  (c.  4,  pt.  .3,  p.  20.) 
^  (iovernor  Krere,  in  Commons 
Papers,  1878,  C.  2079,  j).  241; 
Nt'w  South  Wales  Leg.  Ass'nnhly 
Votes,  1876-77,  vol.  i.  ])p.  25, 
27;{.  For  the  form  of  a  vote  of 
et'iisure  upon  a  governor,  in  eon- 
junction  witii  a  projHJsed  addre.S3 
for  his  recall,  see  ibid.  p.  517. 


42 


PARLIAMENTARY  GOVERNMENT 


The  ex- 
ecutive 
council, 
or  cabi- 
net. 


On  29th  of  May,  1878,  in  the  House  of  Assembly  of  the 
Cape  of  Good  Hope,  the  Speaker  called  attention  to  certain 
paragraphs  in  a  motion  submitted  for  the  consideration  of  the 
House,  and  ruled  that  they  could  not  be  put  from  the  chair, 
as  they  involved  a  direct  censure  upon  his  Excellency  the 
Governor.     The  motion  was  accordingly  withdrawn.'^ 

Authority  to  appoint,  and  to  remove  from  office,  an 
unlimited  number  of  members  of  the  executive  council, 
'■ — "with  reference  to  the  exigencies  of  representative 
government,"  —  is  vested  in  the  governor  of  every 
colony  wherein  responsible  government  has  been  esta- 
blished, without  the  necessity  for  obtaining  the  concur- 
rence of  tlie  home  government ;  and  it  is  understood 
that  councillors  who  have  lost  the  confidence  of  the 
local  legislature  will  tender  their  resignation  to  the 
governor,  or  discontinue  the  practical  exercise  of  their 
functions,  in  analogy  with  the  usage  prevailing  in  the 
United  Kingdom/ 

As  a  rule,  all  outgoing  ministers  should  resign  their 
seats  in  the  executi  /e  council,  or  be  formally  removed 
from  that  body.  Hitherto,  it  has  not  been  deemed 
expedient  to  retain  cx-cubinet  ministers  on  the  list  of 
colonial  executive  councils,  merely  as  honorary  members 
and  in  analogy  to  imperial  practice.  An  organization 
resembling  the  imperial  privy  council,  and  liable  to 
be  convened  on  special  occasions,  or  for  ceremonial 
purposes,  is  not  ordinarily  required  in  colonial  institu- 
tions, which,  at  the  outset  at  least,  should  be  as  simple 
and  practical  as  possible.'''  But,  in  the  Dominion  of 
Canada,  the  practice  prevails  that  "  the  queen's  privy 
council  for  Canada  "  —  the  members  of  which  are  ap- 
pointed by  the  governor-general,  "  to  aid  and  advise 
the   government,"  and  are  removed  at  his  discretion 


«  Sec  /)0.s7,  p.  2S0. 
'  Col.  lU'ir.  1870,  sees.  4,  57. 
'Colonial     Secretary's    (liahnu- 
chere)    despatches    in    1857-58   to 


tlie  governor  of  New  South  "Wales. 
N.  S.  "Wales  Votes  an.l  Proc.  1859 
-60,  vol.  i.  pp.  1135,  ll;{7. 


UNDER  COLONIAL  INSTITUTIONS. 


43 


—  are  nevertheless  permitted  to  retain  an  honorary 
position  in  the  council  after  their  retirement  from  the 
cabinet.  By  command  of  the  queen,  "  members  of  the 
privy  council,  not  of  the  cabinet "  have  a  special  pre- 
cedence within  the  Dominion,  and  are  permitted  to  be 
styled  "  Honourable  "  for  life.'' 

It  is  of  the  essence  of  responsible  government  that  Cabinet 
the  governor  should  choose,  as  his  constitutional  ad-  jn'parii" 
visers,  persons  who  already  possess,  or  who  can  readily  '"^'"'■ 
obtain,  a  seat  in  one  or  other  of  the  legislative  cham- 
bers of  the  colony,  in  order  that  they  may  be  the 
authorized  exponents  therein  of  the  opinions  of  govern- 
ment, as  well  as  of  the  well-understood  wishes  of  the 
people.  It  is  usual  to  assign  to  each  of  these  re- 
sponsible ministers  the  charge  of  a  separate  depart- 
ment of  the  state  ;  so  as  to  place  the  entire  public  service 
under  the  superintendence  and  control  of  responsible 
administrative  heads,  who  possess  the  confidence  of 
the  representative  assembly.  Nevertheless,  pursuant 
to  well-established  constitutional  practice,  it  has  been 
everywhere  regarded  as  allowable  to  strengthen  the 
executive  council,  or  ministry,  by  the  occasional  intro- 
duction therein  of  non-official  members,  holding  no 
portfolios,  or  departmental  office,  l)ut  who  serve  as 
active  members  in  council,  and  share  equally  in  the 
responsiljility  of  their  colleagues  in  the  cabinet,  pro- 
vided only  that  they  must  possess  a  seat  in  parlia- 
ment.' 

It  may  be  of  interest  to  note  a  few  details  in  regard 
to  the  numbers  and  composition  of  the  various  respon- 
sible ministries  which  are  now  in  operation  in  the  prin- 
cipal colonies  of  Great  Britain. 

In  New  South  Wales,  the  cabinet  originally  consisted 


»>Soo;7o.'!^  p.  231.  vol.   i.    pp.   1130,    1137.     AnH   see 

'  Lcjif.    A.sscmlily,     Now     Sojtth     Todd,  I'ail.  Guvt.  vol.  ii.  p.  151. 
Wales,  Votes  and  "Proc.   1859-60, 


44 


PARLIAMENTARY  GOVERNMENT 


i 


i  ^■ 


Composi- 
tion of 
colonial 
ministries. 


of  five  members  ;  it  lias  since  been  increased  to  eight. 
Certain  offices  —  viz.,  the  auditor-general,  the  attorney- 
general,  and  the  solicitor-general  —  have  been  made 
non-politi' 4il ;  but,  in  lieu  of  the  two  latter,  a  minister 
of  justice  has  been  added  to  the  cabinet.^ 

In  Victoria,  the  ministry  is  composed  of  nine  mem- 
bers, including  an  attorney-general,  as  well  as  a  minis- 
.ter  of  justice.*" 

In  South  Australia,  there  are  six  ministers,  including 
an  attorney-general.* 

In  Tasmania,  there  are  five  cabinet  ministers  I  old- 
ing  office,  and  two  others  without  portfolios.'" 

In  New  Zealand,  the  cabinet,  since  1870,  may  con- 
sist of  seven  official  members,  and  of  two  others  of  the 
Maori  race.  It  now  comprises  seven  members,  including 
an  attorney-general  and  a  minister  of  justice.  Though 
provision  w\as  made  in  1873  to  add  to  the  cabinet  two 
Maori  miaister,^,  —  and  they  have  been  included  in 
preceding  cabinets,  without  portfolios,  —  they  are  not 
to  be  found  in  the  last  official  return." 

In  Queensland,  there  are  usually  six  responsible  mi- 
nisters, including  the  attorney-general.  Sometimes  an 
additional  minister  is  appointed,  but  without  office  or 
salary." 

In  the  Cape  of  Good  Hope,  there  are  five  cabinet 
ministers,  including  the  attorney-general.'' 

In  the  Dominion  of  Canada,  at  the  time  of  con- 
federation in  1867,  there  were  thirteen  cabinet  minis- 
ters. This  large  number  is  explained  by  the  fact  that 
it  is  customary  to  choose  members  of  the  cabinet  from 


i  Trnllope.    Australia,  vol.  i.  p.  "»  C  O.  List,  1879,  p.  150. 

215.     Kcid,   Essav  on   New  Sontli         "  Ihid.     p.     l;}:3.      N.     Zealand 
Wales,  in    1870,  p.   11.      Colonial    OfPcial  Papers,  1872,  A.  No.  1,  p. 


OlHce  Li.st,  1S79,  p.  127. 

^  Vict.  Stats,  'ja  Vict.  No.  91. 
C.  O.  List,  1879,  p.  109. 

•  Trollopc,  vol.  ii.  p.  247.  C. 
O.  List,  1879,  p.  UO. 


41.  N.  Z.  Stats.  1876,  No.  70. 
I  hill,  1878,  No.  30,  sec.  5. 

°  Trollope,  vol.  i.  p.  157.  C.  O. 
List,  1879,  p.  139. 

P  Ihid.  p.  54. 


UNDER  COLONIAL  INSTITUTIONS. 


45 


lold- 


the  principal  provinces  included  in  the  confederation, 
in  proportion  to  their  relative  extent  and  importance. 
Upon  a  change  of  ministry  in  1873,  the  number  of 
ministers  was  increased  to  fourteen,  but  two  of  them 
were  then  without  portfolios.  There  are  now  fourteen 
ministers,  all  holding  office.  One  is  styled  the  minis- 
ter of  justice  and  attorney-general  of  Canada.'^ 

Particular  mention  has  been  made  of  the  office  of  at-  ^iionid 
torney-general,  in  the  foregoing  enumerations,  because  ney-gcnu- 
in  various  Australian  colonies  there  have  been  repeated  the  caw- 
attempts  to  rendor  thih  office  non-political.''     The  main  "^'^ ' 
reasons  alleged  for  this  endeavour  p^e  briefly  these  : 
that  it  is  contrary  to  imperial  practice  for  the  law  offi- 
cers of  the  Crown  to  sit  in  the  cabinet ;  although  they 
form  part  of  the  government,  and  invariably  retire  upon 
a  change  of  ministry;" — that   the    representative  of 
the  Crown  should  not  be  obliged  to  seek  for  legal  ad- 
vice from  law  officers  who,  after  advice  given,  are  able, 
it  may  be,  by  a  casting-vote  in  council  to  insist  upon 
the  same  being  accepted  and  carried  out ;    -  and  that, 
in  the  conduct  of  state  prosecutions,  the  interests  of 
justice  would  be  jeopardized  by  the  combination   of 


t\   ii 


H 


1  Trollopo,  vol.  i.  p.  40.  Can. 
Stats.  1868,  c.  "9;  ibul.  1879, 
c.  7. 

■■  In  1S7.3,  the  Loirislative  As- 
sembly of  New  South  Wales  asjreed 
to  resolutions  to  render  the  offices 
of  attorney-general  and  of  solicitor- 
general  non-political.  But  in  March, 
187.S,  the  assendjiy  reversed  their 
decision,  so  far  as  the  offic(>  of  atlor- 
ney-general  was  concerned.  That 
functionary,  however,  is  not  in- 
•cluded  in  the  list  of  minister><  in  the 
last  returns.  In  \ew  Zealand,  l)y 
an  act  passed  in  1870,  no.  71,  the 
attorn(!v-,U'eneral  may  be  either  a 
permanent  and  non-political  officer, 
or  a  member  of  the  cabinet,  with  a 
seat  in  parliament,  at  the  discretion 


of  the  governor  in  council.  See 
the  South  Australia  House  of  Re- 
presentatives' Votes,  1871,  p.  202, 
a  resolution  to  the  same  effect.  In 
Canada,  so  far  back  as  in  IS.jO.  the 
exclusion  of  the  crown  law  officers 
from  the  cabinet,  in  conformity 
with  imperial  usage,  and  in  order 
that  they  might  be  able  to  devote 
more  time  to  their  official  duties, 
was  advocated  by  men  of  special 
experience  ard  ability;  viz.,  by  Mr. 
.1.  Ilillyard  Cameron.  Chief  Justice 
Draper,  and  Mr.  ,].  K.  Small.  See 
Leg.  Assembly  Journals,  1850, 
Apx.  H.  H. 

•Todd,   Pari.    Govt.    vol.   ii.  p. 
1G2. 


46 


PARLIAMENTARY  GOVERNMENT 


policy  and  law  in  the  persons  who  conduct  crown  pro- 
secutions.* 

As  a  set-off  against  these  objections,  it  may  be  ob- 
served that  in  practice  it  has  been  customary,  at 
least  in  Canada,  for  the  attorney-general  to  fill  the 
office  of  premier,  in  most  instances  since  the  establish- 
ment of  responsible  government,  and  that  no  great 
difficulty  has  resulted  therefrom  at  any  time.  The 
knowledge  of  law  and  of  the  Constitution  necessarily 
possessed  by  one  qualified  to  fill  this  responsible  office 
has  usually  led  to  his  selection  for  the  most  prominent 
position  in  the  ministry.  When  this  has  been  the  case, 
the  conduct  of  crown  business  in  the  courts  is  gene- 
rally assigned  to  professional  men,  otherwise  discon- 
nected with  the  government. 

Upon  the  nicer  question  as  to  the  discretion  of  a 
governor  who  applies  for  legal  advice  to  law  officers 
who  are  also  cabinet  ministers,  and  has  reason  to  believe 
that  their  legal  judgment  has  been  imconsciously  biassed 
by  political  considerations,  so  that  he  cannot  accept 
their  interpretation  of  the  law,  it  should  be  remembered 
that  a  governor  is  not  bound  by  opinions  given  under 
such  circumstances,  but  is  free  to  ask  further  assistance 
from  elsewhere,  to  aid  him  in  his  judgment :  with  this 
proviso,  however,  that,  in  questions  of  purely  local  con- 
cern, the  governor  must  finally  decide  upon  his  p,  jso- 
nal  responsibility ;  and  whomsoever  he  may  consult,  and 
from  whatever  source  his  opinion  may  be  enlightened, 
he  cannot  shelter  himself  behind  advice  received  from 
any  persons  outside  his  own  ministers." 

In  the  colonies  of  Great  Britain  under  responsible 
government,  members  of  the  popular  chamber,  upon 


'  Judge  Bonthby's  Memoran- 
dum ;  Com.  Papers,  1862,  vol. 
:-\'xvii.  p.  106.  Forster's  South 
Australia,  pp.  182,  208.  New 
ZealiMul    Acts,    30    Vict.    no.   Qi). 


New  Zealaud   Assembly   Journals, 
1870,  app.  1).  no.  ;V->. 

"   See  an(e,  pp.  8-10,  and  jmsf, 
p.  13 1. 


m 


V 


\ 


X 


UNDER  COLONIAL  INSTITUTIONS. 


47 


\ 


X 


accepting  office,  as  a  rule  vacate  their  seats  and  require  Vacation 
to  be  re-elected.  In  South  Australia  and  in  New  Zea-  mSters?" 
land  only,  does  a  different  usage  prevail.  In  both  these 
colonies,  from  the  first,  members  of  elective  houses  have 
been  permitted  to  accept  political  office  without  thereby 
vacating  their  seats.  This  peculiarity  in  the  consti- 
tution of  these  colonies  was  avowedly  introduced  in 
order  to  save  the  community  from  the  cost  and  excite- 
ment entailed  by  frequent  elections,  and  to  facilitate 
the  speedy  re-adjustment  of  offices  upon  a  change  of 
ministry.  But  the  experiment  has  not  succeeded.  By 
removing  an  obvious  impediment  to  frequent  ministerial 
changes,  it  has  fostered  the  element  of  instability,  which 
is  one  of  the  most  serious  evils  incident  to  parliamentary 
government.  There  are  indications,  however,  that  pub- 
lic opinion  in  those  colonies  is  becoming  favourable  to 
the  abolition  of  this  doubtful  and  exceptional  advan- 
tage to  provincial  statesmen,  and  desirous  of  introduc- 
ing therein  the  usage  of  the  mother  country  in  this 
particular.'' 

The  instability  of  colonial  administrations,  and  the  nrkf  (in- 
frequent changes  of  government  and  consequent  vacil-  colonial 
lations  of  policy,  have  been  very  lamentalble,  in  the  """'^^"''^ 
various  Australian  colonies ;  not  merely  in  the  colonies 
above-mentioned,  but  likewise  in  others,  as  the  follow- 
ing statistics  will  show:  In  South  Australia,  from  1856 
to  1876,  there  were  no  less  than  twenty-nine  successive 
administrations.'''     In  New  Zealand,  from  1856  to  1876, 
there  were  seventeen  ministries  in  succession.     In  the 
brief  period  of  seven  months,  ending  April  8,  1873, 
five   distinct   administrations   were    formed,  of  whom 
the  premiers  were  successively  Messrs.  Fox,  Stafford, 


^ 


j 


p 


\\\ 


'Todd,    Pari.   Govt.  vol.  ii.  p.     Zealand  Pari.  Deb.  (in  1876)  vol. 
277.     South  Australia   Pari.    Prnc.     xxii.  p.  102. 
1869-70,    vol.    i.    p.    140.      New 

*  Blue   Book  of  S.  Australia,  1876,  p.  7. 


Jl' 


48 


PARLIAMENTARY  GOVERNMENT 


Waterhouse,  Fox,  and  Vogel."    In  Victoria,  from  1855 
to    1877,  there   were   eighteen   different    administra- 
tions/    In  Tasmania,  from  1856  to  1877,  there  were 
twelve    successive    administrations.''       And,    in    New 
South   Wales,  from    1856   to   September,  1877,  there 
Except  in    were  seventeen  different  ministries.''      The   Dominion 
of  Canada  has  presented   a   marked  contrast  to   this 
unstable  political  condition.      Upon  the  confederation 
of  the  British  North-American  provinces  in  1867,  Sir 
John  A.  Macdonald  was  appointed  premier  (his  minis- 
try having  been  already  in  existence,  in  the  province 
of  Canada,  for  three  years) ;  and  he  continued  prime 
minister  until  November  5,  1873,  when  the  Mackenzie 
administration  was  formed.      This  ministry  lasted  for 
five  years.     In  1878,  Sir  J.  A.  Macdonald  returned  to 
power,   bringing   with   him   most   of   his   former  col- 
leagues.'' 

In  another  matter  of  special  constitutional  im- 
portance, the  Dominion  of  Canada  has  presented  a 
commendable  example  to  the  sister  colonies  in  Austra- 
lia. Following  the  practice  previously  observed,  from 
the  first  introduction  of  responsible  government  into 
the  old  province  of  Canada,  it  has  been  customary 
that  two  members  of  the  cabinet  should  have  seats  in 
the  upper  house,  to  take  charge  of  public  business 
therein,  and  generally  to  represent  the  administration 
in  the  Legislative  Council,  or,  as  it  is  now  termed,  the 
Senate.  It  is  understood  that  less  than  two  members 
would  not  suffice  for  this  purpose  ;  and,  upon  the  forma- 
tion of  the  present  administration,  in  November,  1878, 


Ministers 
in  tlio 
upper 
huuse. 


»  New   Zealand    Papers,    1873,  »»  Can.  Pari.  Companion,  1879, 

A,   1   a.     New  Zealand   Statistics,     p.  188.     The  first   responsible   mi- 


1876,  p.  G. 

y  Vict.  Year  Book.  p.  1. 
*  Col.  Statistics,  1877,  p.  8. 


ni.stry  in  the  Cape  of  Good  Hope, 
likewise  had  a  long  tenure  of  office. 
It  existed  from  December,  1872,  un- 


»  Official     Papers,     N.     S.    W.     til  February,  1878.     See  post,  p.  73. 
1878. 


\ 


1879, 

)le  mi- 
Ilope, 

'  office. 

72,  un- 
p.  73. 


N 


UNDER  COLONIAL  INSTITUTIONS. 


\ 


the  number  was  increased  to  three,  —  the  speaker  of  Cabinet 
the  Senate  being,  for  the  first  time  aince  confederation,  "n"the^" 
made  a  cabinet  minister.  JJpJ''^'^ 

In  Australia,  it  appears  always  to  have  been  the 
rule  hitherto  to  assign  but  one  cabinet  minister  to  the 
upper  chamber.  This  has  repeatedly  occasioned  diffi- 
culty, and  has  sometimes  led  to  formal  complaint. 

Thus,  in  Victoria,  during  the  contentions  between 
the  two  houses,  upon  the  relative  rights  of  each  in 
matters  of  supply  and  taxation,  —  which  will  be  fidly 
considered  in  a  subsequent  part  of  this  work,  —  the 
only  representative  of  the  ministry  in  the  legislative 
council  (the  postmaster-general)  resigned  his  office, 
because  he  could  not  agree  with  his  colleagues  in  the 
ministry,  respecting  their  proposed  bill  for  the  reform 
of  the  constitution  of  that  chamber.  This  led  to 
much  inconvenience.  For  although,  in  Victoria,  there 
has  never  been  more  than  one  dejiartmental  minister 
in  the  Legislative  Council,  and  he  has  rarely  filled  a 
very  prominent  office,  yet  sometimes  a  cabinet  minister 
without  a  portfolio  has  sat  in  the  council.  At  this 
time,  however,  the  resignation  of  the  postmaster-gene- 
ral deprived  the  council  of  any  representative  of  the 
government.  This  circumstance  had  a  natural  ten- 
dency to  identify  the  council,  as  a  body,  with  the  oppo- 
sition in  the  assembly  ;  whereas  a  patriotic  statesman, 
filling  the  honourable  position  of  premier,  will  readily 
apprehend  that  it  is  "  the  interest,  not  to  say  the  para- 
mount duty,  of  every  minister  so  to  shape  his  course 
as,  if  possible,  to  keep  the  two  houses  of  Parliament 
in  harmony,  and  not  to  throw  himself  absolutely  and 
entirely  into  the  hands  of  one  branch  of  the  legisla- 
ture, regardless  of  the  wishes  and  feelings  of  the 
other."  -^ 


N''. 


V 


I      i,f 


I 


w^  r 


«  Earl  of  Derby,  Hans.  Deb.  vol.  134,  p.  840. 


50 


PARLIAMENTARY  GOVERNMENT 


A  committee  of  the  Legislative  Coimcil  of  Victoria, 
in  conference  with  a  committee  of  the  Assembly  on 
constitutional  reform,  pointed  out  the  necessity  that 
existed  for  the  constant  presence  of  at  least  two  — 
and,  if  possible,  more  —  responsible  ministers  in  the 
Legislative  Council.  They  believed  "  that  such  a  rule,  if 
it  were  habitually  observed,  would,  as  it  lias  done  in  Eng- 
land, promote  the  harmonious  working  of  the  two  houses, 
would  facilitate  legislation,  and  divide  its  labours ;  and 
would  tend  to  prevent  the  danger  of  collision  between 
the  houses,  by  transferring  to  the  cabinet,  in  confor- 
mity with  constitutional  theory  and  usage,  the  most  nu- 
merous and  the  most  serious  causes  of  dispute."  '^ 

In  New  Zealand,  up  to  the  passing  of  the  new  dis- 
qualification act  of  1876,  it  had  been  customary  to 
have  two  official  ministers  —  or,  at  least,  one  minister 
holding  office,  and  another  without  a  portfolio  —  to  re- 
present the  government  in  the  Legislative  Council.  But, 
by  the  operation  of  the  act  aforesaid,  the  ministry  con- 
sidered themselves  debarred  from  assigning  to  more 
than  one  legislative  councillor  a  cabinet  seat.  Where- 
upon the  Legislative  Council,  on  October  10,  1876,  re- 
solved, ''  that  it  is  desirable  that  the  government  of  the 
colony  should  be  represented  in  this  council  by  at  least 
two  responsible  ministers."  No  effect  having  been 
given  to  this  resolution,  a  bill  was  brought  into  the 
Legislative  Council,  on  behalf  of  the  government,  on 
Aug.  16,  1878,  to  authorize  the  appointment  of  a  se- 
cond minister,  not  being  a  salaried  officer,  expressly 
to  assist  the  government  in  the  Legislative  Council. 
This  bill  passed  the  Council,  but  was  laid  aside  in  the 
House  of  llepresentatives." 

In  South  Australia,  for  about  three  months  in  the 
session  of  1877,  the  Legislative  Council,  because  they 


d  ronimnns  Papers.  1878-79,  C.  2217,  pp.  4,  40,  .'SO. 

'  Xow  Zoulaiid  rail.  Debates,  vol.  xxviii.  p.  201;  vol.  xxx.  p.  099. 


X 


i 


UNDER  COLONIAL  INSTITUTIONS. 


51 


V 


disapproved  of  the  public  conduct  of  the  chief  secre-  Extraor- 
tury,  vvlio  was  the  only  minister  sittinji^  in  that  cham-  jiroaod- 
ber,  resolved  that  the  control  of  public  business  should  Jl'j^jy^ 
be  taken  out  of  his  hands,  and  entrusted  to  a  member  Australia. 
of  the  opposition.     This  extraordinary  proceeding  was 
protested  against  by  ministers,  and   also  by  the  go- 
vernor, as  being  an  infringement  upon  the  prerogative 
of  the  Crown.     The  council,  however,  adhered  to  their 
determination  ;  and  this  unprecedented  state  of  affairs 
continued  until  the  downfall  of  the  ministry ;  when  the 
opposition,  succeeding  to  power,  assigned  the  position 
of  leader  of  the  government  in  the  Legislative  Council 
to  the  man  who  had  been  chosen  by  the  Council  them- 
selves to  fdl  that  office/ 

Further  points  of  interest  concerning  legislative 
councils  in  the  colonies,  and  their  relation  to  the  repre- 
sentative assemblies,  will  come  before  us,  in  a  subse- 
quent chapter,  descriptive  of  the  constitution  and 
powers  of  colonial  parliaments. 

Wii  "ever  parliamentary  government  has  been  esta-  Political 
blished,  tlie  determination  of  all  political  and  party  ques-  JUbe  di'g"^' 
tions,  and  the  adjudication  upon  complaints  against  the  posed  of 
existing  administration,  should  be  reserved  for  the  con-  ment. 
sideration  of  legislature,  in  parliament  assembled.     A 
defeated  minority  is  not  entitled,  after  a  prorogation  or 
dissolution  of  parliament,  to  appeal  either  to  the  gover- 
nor of  the  colony  or  to  the  imperial  government  to  inter- 
pose, for  the  purpose  of  giving  immediate  effect  to  an 
assumed  change  in  public  sentiment,  and  to  place  the 
reins  of  government  in  the  hands  of  other  leaders,  on 
the  plea  that  their  party  have  obtained  a  majority  at 
the  polls,  or  that  the  remonstrants  do,  in  fact,  consti- 
tute a  majority  of  the  popular  chamber.     Addresses  or 
petitions,  for  such  a  purpose,  although  they  may  ema- 


If 


jj-  • 


*  See  the  pi.rticulars  of  this  case,  post,  p.  482. 


TAULIAMENTARY  GOVERNMENT 


f,  '. 


Rc9ip:na- 
tion  of  a 
ministry 
after  de- 
feat at  tlie 
hustings. 


nate  from  members  of  the  legislature  in  their  indi- 
vidual capacity,  are  highly  irregular,  and  objectionable 
in  principle.  Complaints  against  ministers  of  the 
Crown,  on  matters  affecting  the  performance  of  their 
public  duty,  ought  not  to  be  pressed  upon  the  atten- 
tion of  the  governor  or  of  the  imperial  authorities, 
during  a  parliamentary  recess ;  but  should  be  formu- 
lated in  conformity  with  the  ordinary  rules  of  parlia- 
mentary procedure,  and  submitted  to  the  consideration 
of  the  local  parliament,  at  the  first  available  opportu- 
nity, when  they  can  be  regularly  investigated  and 
decided  upon,  in  accordance  v/ith  the  usages  of  the 
Constitution  >' 

Modern  constitutional  practice  has,  however,  sanc- 
tioned one  deviation  from  the  rule  which  forbids  an 
appeal  to  any  other  tribunal  than  that  of  Parliament 
itself  to  decide  upon  the  fate  of  ministries.  Up  to  the 
year  1868,  "the  general  current  of  precedent"  was 
decidedly  "  in  fiivour  of  a  minister,  beaten  at  a  general 
election,  accepting  his  defeat  only  at  the  hands  of  Par- 
liament ;  and  this  custom  was  grounded  on  the  salu- 
tary doctrine  that  it  is  only  through  Parliament  that 
the  nation  can  speak."  ^' 

But,  in  1868,  the  Disraeli  administration,  and 
again,  in  1874,  the  Gladstone  administration,  re- 
spectively resigned  office,  soon  after  the  adverse  result 
of  their  appeal  to  the  constituencies  was  apparent. 
Their  speedy  resignatl..ii  —  in  anticipation  of  a  result 
which  must  have  inevitably  followed,  as  soon  as  it  had 


8  See  Correspondence  of  Gover- 
nor Miilgrave  with  the  colonial 
secretary,  in  IS.lf),  Nova  Scotia 
Lejy.  Council  Journals,  1860,  appx. 
p.  59;  (Queensland  Leg.  Assembly 
Votes  and  Proc.  2d  Sess.  1867, 
vol.  i.  p.  628;  and  the  answer  of 
ICarl  Dufferin,  governor-general  of 
Canada,  to  a  deputation  of  mem- 


bers of  the  Canadian  Parliament, 
on  Aug.  1:5,  1873:  in  Canada  Com. 
Journals,  2d  Sess.  1873,  p.  80, 
and  in  the  Imperial  Commons  Pa- 
pers, 1874,  vol.  xlv.  pp.  25-30, 
and  ihid.  p.  265. 

^  Fortnightly  Review,  August, 
1878,  p.  265;  Todd,  Pari.  Govt, 
vol.  ii.  p.  414. 


ri 


UNDER  COLOXIAL  INSTITUTIONS. 


53 


been  possible  for  Parliament  to  give  formal  expression 
to  the  popular  will  —  was  unquestionably  productive 
of  much  public  advantage  and  private  convenience,  in 
the  orderlv  conduct  of  state  affairs. '  Mr.  E.  A.  Free- 
man  views  these  precedents  as  introducing  a  new  prin- 
ciple into  the  nn written  Constitution  of  England,  by 
means  of  which  the  direct  action  of  the  electors  at 
their  polling-booths  is  capable  of  effecting  a  change  of 
ministers,  without  the  intervention  of  the  House  of 
Commons.  While  deprecating  this  novel  departure 
from  ancient  constitutional  usage,  he  considers  these 
recent  cases  as  indicating  the  course  which  in  all 
probability  will  be  generally  followed  hereafter,  upon 
similar  occasions ;  subject,  of  course,  to  the  discretion 
of  ministers,  who  must  retain  a  liberty  of  choice  in  a 
matter  of  such  grave  importance,  which  involves  seri- 
ous consequences  to  themselves,  to  their  party,  and 
to  the  nation  .J 

The  effect  of  adverse  votes  in  Parliament  upon  the 
fate  of  a  ministry,  and  the  constitutional  practice 
which  regulates  the  granting  or  withholding  by  the  go- 
vernor of  an  appeal  by  a  defeated  administration  to  the 
constituencies,  will  be  considered  in  a  later  part  of  this 
treatise. 


•  Hans.  Deb.  vol.  cxcv.  p.  739. 
So  likewise,  in  Victoria,  upon  the 
defeat  of  the  IMcCuUoch  ministry 
at  the  general  election  on  May  11, 

1877,  the  administration  resigned 
on  May  21,  the  day  previous  to  the 
meeting  of  the  new  parliament. 
And  in  Canada,  —  shortly  after  the 
general  election,  held  in  September, 

1878,  and  which  resulted  iu  the  de- 


feat of  the  Reform  party  at  the 
hustings, — the  Mackenzie  admin- 
istration resigned,  and  were  re- 
placed by  the  conservative  adminis- 
tration of  Sir  John  A.  Macdonald. 
The  new  parliament  met,  at  about 
the  usual  period,  in  February,  1879. 
J  International  Iteview,  vol.  ii. 
p.  374. 


^1   ^ 


r; 


Ii 


: 


SI  ::< 


|l  ! 

m 


iiK'iitary 

goveni- 

meiit. 


CHAPTER  III. 

mSTOT^ICAL  ACCOUNT  OF  THE  INTRODUCTION  OF  FARLIA- 
MENTAllY  GOVERNMENT  INTO  THE  COLONIES  OF  GUEAT 
BRITAIN. 

Oripin  of  HAVING  investigated  the  general  principles  of  parlia- 
pariiii-  mentary  government,  in  their  application  to  colonial 
rule,  we  will  proceed  to  inquire  into  the  particular  cir- 
cumstances which  gave  rise  to  the  establishment  of 
that  system  in  the  more  important  colonies  of  the 
empire. 

The  first  colony  of  Great  Britain  wherein  this  great 
measure  of  colonial  administrative  reform  was  intro- 
duced, was  Canada. 

Both  in  Lower  and  in  Upper  Canada  —  which  were 
then  separate  provinces,  with  distinct  governments  — 
political  grievances  had  for  several  years  existed,  and 
begun  to  assume  a  threatening  aspect,  tending  to  the 
overthrow  of  the  authority  of  the  British  Crown,  and 
the  assertion  of  independence  under  republican  insti- 
tutions. These  grievances  were  mainly  attributable  to 
the  lack  of  a  spirit  of  harmony  and  co-operation  be- 
tween the  legislative  and  executive  authorities.  Similiu* 
complaints  found  expression  in  the  maritime  colonies 
of  British  America ;  although  the  orderly  and  loyal 
spirit  prevailing  therein  kept  back  the  spirit  of  dis- 
affection, which  Irid  manifested  itself  in  overt  acts  of 
rebellion  in  both  Canadian  provinces. 

The  insurrection  in  Canada  was,  however,  promptly 


PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


55 


suppressed  by  the  strong  arm  of  military  power ;  aided,  Lord  Dur- 
at  least  in  the  upper  province,  by  the  awakened  loy-  poJ".*  ^^' 
alty  of  the  great  bulk  of  the  population.  At  this  junc- 
ture, the  Earl  of  Durham  was  deputed  to  proceed  to 
Canada,  as  governor-general  and  lord  high  commis- 
sioner to  investigate  the  affairs  of  British  North  Ame- 
rica. In  1839,  the  year  after  his  appointment.  Lord 
Durliam  presented  to  the  queen  an  elaborate  report 
on  the  result  of  his  inquiries.  In  this  report,  his  lord- 
ship recommended,  as  a  panacea  for  all  existing  politi- 
cal complaints,  the  introduction  into  the  several  British 
North  American  colonies  of  the  principle  of  local  self- 
government;  thereby  rendering  our  colonial  polity,  so 
far  as  was  consistent  with  the  maintenance  of  British 
connection,  and  of  imperial  supremacy,  "  an  image  and 
transcript  of  the  British  Constitution."'' 

Mr.  Poulett  Thomson  (afterwards  Lord  Sydenham)  LonU. 
was  sent  to  Canada,  in  the  autumn  of  1839,  as  governor-  ,^^"'3^^^^^^ 
general ;  and  he  was  instructed  to  give  effect  to  the  ^^^ 
principles   set  forth  in  Lord  Durham's   report.     Lord 
John  Russell  (then  colonial  secretary)  officially  notified 
Mr.  Thomson  of  the  system  under  which  he  was  to 
administer  the  government,  in  a  despatch  dated  Sept.  7, 
1839,  which  embodied  her  Majesty's  instructions  upon 
his  assumption  of  the  government  of  British  North 
America;  and   subscfiuently  in    two  despatches  dated 
Oct.  14  and   IG,  1839.     These  despatches  deprecated 
any   attempt    to   apply   the    princi})le    of   ministerial 
responsibility  to  a  provincial  assembly,  to  acts  of  the 
governor  which  were  performed  by  him  ii    o))edience 

•    riiis  phrasfi  \Yas  first  iMiiployed  lishuiciit  of  roprosentative  institu- 

l)V  Lii'iitcMiaiiKiovcnior  .Siitiooe,  in  tioiis    in    that   pioviiict'  ;    ulthoiigh 

Ills  speech   fntiii  the  tl)r<)iH',  at  ilii^  these  intentions  did  not  apparent ly 

close    of    till',   tirst   session    of    tlie  contemplate,  at  llial  earl.\  jieiiod,  tiio 

first  jiroiMiicial  ]iarlianient  of    I'p-  introduction    of    "  responsiltle    gti- 

j)er  Canada,  in  17!*-.     It  exjuessed  verninent."     See  Connnons  I'apers, 

the  intentions  of  tiie  iini>eiial  f,^)-  1839,  vol.  xxxiii.  p.  lliO. 
vernnieiit  in  rcfeicncy  to  the  uHtab- 


!,i 


1     ' 


Ii 


a 


■w 


Canadian 
resolu- 
tions on 
rt'sponsi- 
l)le  go- 
vernment. 


66 


PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


to  the  royal  instructions,  or  to  questions  of  an  imperial 
nature ;  as  being  at  variance  with  the  allegiance  clue 
to  the  British  Crown.  But  the  application  of  this 
principle  to  questions  of  local  concern  was  approved ; 
and  directions  were  given  to  change  the  tenure  of 
office  of  the  heads  of  public  departments  in  the  pro- 
vince, so  as  to  admit  of  such  offices  being  held  by 
executive  councillors  who  should  possess  the  confi- 
dence of  the  assembly,  and  of  the  removal  of  such 
persons  from  office  "  as  often  as  any  sufficient  motives 
of  public  policy  might  suggest  the  expediency"  there- 
of Lord  Sydenham  took  an  early  opportunity  of 
giving  effect  to  these  instructions,  by  publicly  announc- 
ing that  henceforth  the  government  of  Canada  should 
be  conducted  in  harmony  with  the  well-understood 
wishes  of  the  people,  and  that  the  attempt  to  govern 
by  a  minority  would  no  longer  b :  resorted  to ;  a 
declaration  which  was  received  with  satisfaction,  by 
all  moderate  men,  throughout  the  province. *" 

Accordingly,  on  Sept.  3,  1841,  resolutions  were  sub- 
mitted to  the  Legislative  Assembly  of  Canada  by  Mr. 
Secretary  Harrison  (in  amendment  to  a  series  pro- 
posed by  Mr.  Robert  Baldwin),  which  were  unanimously 
agreed  to,  and  which  constitute,  in  fact,  articles  of 
agreement,  upon  the  momentous  question  of  respon- 
sible government,  between  the  executive  authority  of 
the  Crown  and  the  Canadian  people. 

It  was  resolved,  (1)  that  "the  head  of  the  executive 
government  of  the  province  being,  within  the  limits 
of  his  government,  the  representative  of  the  sovereign, 
is  responsible  to  the  imperial  authority  alone  ;  but  that, 
nevertheless,  the  management  of  our  local  affairs  can 
only  be  conducted  by  iiim,  by  and  with  the  assistance, 
counsel,  and  information  of  subordinate  officers  in  the 


»>  Scropp,  T.ii*;'  of  Lord  SvclcnlinTu,  2(1  ed.  pn.  2.')7-208;   Canada  Leg. 

appx.  B.  li. 


Assembly  Journals,  1841,  p.  ISUU  and 


prO^'i 

the 

that 

fare, 

advitf 

stitut 

to  be 

tativ* 

the 

whic 

the 


mg 


PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES.       57 


pro- 
1  by 


prOij^'ince."  (2.)  "That  in  order  to  preserve,  between 
the  different  branches  of  the  provincial  parliament,  J|,^f,"'"|, 
that  harmony  which  is  essential  to  the  peace,  wel-  nsponsi- 
fare,  and  good  government  of  the  province,  the  chief  vcmmcnt. 
advisers  of  the  representative  of  the  sovereign,  con- 
stituting a  provincial  administration  under  him,  ought 
to  be  men  possessed  of  the  confidence  of  the  represen- 
tatives of  the  people ;  thus  affording  a  guarantee  that 
the  well-understood  wishes  and  interests  of  the  people, 
which  our  Gracious  Sovereign  has  declared  shall  be 
the  rule  of  the  provincial  government,  will,  on  all 
occasions,  be  faithfully  represented  and  advocated." 
(3.)  "  That  the  people  of  this  province  have,  moreover, 
a  right  to  expect  from  such  provincial  administration 
the  exertion  of  their  best  endeavours  that  the  imperial 
authority,  within  its  constitutional  limits,  shall  be  exer- 
cised in  the  manner  most  consistent  with  their  well- 
understood  wishes  and  interests." 

A  further  resolution  was  proposed,  by  Mr.  Baldwin, 
to  assert  the  constitutional  right  of  the  Assembly  to 
hold  the  provincial  administration  responsible  for  using 
their  best  exertions  to  procure,  from  the  imperial 
authorities,  that  their  rightful  action,  in  matters  affect- 
ing Canadian  interests,  should  be  exercised  with  a 
similar  regard  to  the  wishes  and  interests  of  the  Cana- 
dian people.  But  this  resolution,  being  presumably  op- 
posed to  the  principle  of  non-interference,  by  colonial 
ministers,  in  matters  of  imperial  concern,  —  as  main- 
tained in  Lord  John  Russell's  despatch  of  14th  October, 
1839,  —  was,  after  debate,  unanimously  rejected. 

Lord  Sydenham  died,  unexpectedly,  from  injury  sus- 
tained by  a  fall  from  his  horse,  a  few  days  after  the 
passing  of  these  memorable  resolutions.  Sir  Charles 
Bagot  and  Sir  Charles  Metcalfe,  who  severally  suc- 
ceeded him  as  governors  of  Canada  in  LS42  and  in 
1844,  emphati(uUly  declared  their  acceptance  of  respon- 


58 


PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


:  i 


Lord  El- 
pin's  iid- 
niiniatra- 
tion. 


sible  government,  as  embodied  in  the  foregoing  reso- 
lutions. But,  during  their  term  of  office,  the  system 
itself  was  imperfectly  understood,  and  mistakes  were 
made,  on  all  sides,  n  the  application  of  this  hitherto 
untried  experiment  in  colonial  government  to  the 
practical  administration  of  local  affairs.'^ 
.  After  a  brief  interval,  during  which  Lord  Cathcart 
(a  military  officer)  was  appointed  governor-general,  in 
view  of  the  threatening  aspect  of  our  relations  with 
the  United  States,  the  imperial  government  were  im- 
pressed with  the  necessity  for  entrusting  the  manage- 
ment of  all'airs  in  Canada  to  a  person  who  should 
possess  an  intimate  knowledge  of  the  principles  and 
practice  of  the  British  Constitution,  some  experience 
of  the  House  of  Commons,  and  a  familiarity  with  the 
political  questions  of  the  day.  Such  an  one  was  hap- 
pily found  in  Lord  Elgin,  who  was  accordingly  selected 
by  the  government  of  which  Lord  John  Russell  was 
premier,  and  Earl  Grey  the  colonial  secretary. 

Previous  to  his  departure  for  Canada,  in  January, 
1847,  Earl  Grey  carefully  instructed  the  new  governor- 
general  as  to  the  line  of  conduct  he  should  pursue,  and 
the  means  he  should  adopt,  in  order  to  bring  into  full 
and  beneficial  operation,  in  British  North  America,  the 
novel  machinery  of  constitutional  government. 

In  Earl  Grey's  History  of  the  Colonial  Policy  of  Great 
Britain,  during  Lord  John  Russell's  ministry,  we  are 
informed  of  the  general  tenor  of  the  instructions  given 
to  Lord  Elgin,  and  of  the  successful  result  of  his  policy 
and  conduct.'' 

Lord  Elgin's  private  letters  to  Earl  Grey  (written  from 
Canada,  and  posthumously  published)  alford  us  some 
interesting  details  and  valuable  suggestions  as  to  his 


"  (Jrev,  Coloniiil   I'oliry,  vol.  i.  ''  Son     (Jrcv,     Coloiii:il    Tolicv, 

p.  2i)-}.    'Ad.l.'il.'v,  Colonial  I'oli«\v,     vol.  i.   pi).  L'U(j-2:il.     AddtMlcy,  [u 
}>.  27.     Set'  idso  Ft'iiiiiiiLTs  Taylor's,     ;}I. 
Are  Lj'gisliituru.s  I'arliumentsy  c.  (i. 


PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES.        59 


ure 


methods  of  administration.  He  says  therein  :  "  I  give  ^.""'  ^^'■ 
to  my  ministers  all  constitutional  support,  frankly  and  sponsible 
without  reserve,  and  the  benefit  of  the  best  advice  that  mmi!^ 
I  can  afford  them  in  their  difficulties.  In  return  for 
this,  I  expect  that  they  will,  as  far  as  possible,  carry  out 
my  views  for  the  maintenance  of  the  connection  with 
Great  Britain,  and  the  advancement  of  the  interests  of 
the  province."  "  But,"  he  adds,  "  I  have  never  con- 
cealed from  them  that  I  intend  to  do  nothing  which 
may  prevent  me  from  working  cordially  with  their 
opponents,  if  they  are  forced  upon  me ; "  shewing  my 
"confidence  in  the  loyalty  of  all  the  influential  parties 
with  which  I  have  to  deal,"  and  being  devoid  of  "  per- 
sonal antipathies."  "A  governor-gentral,  by  acting  on 
these  views,  with  tact  and  firmness,  may  hope  to  esta- 
blish a  moral  influence  in  the  province,  which  will  go  far 
to  compensate  for  the  loss  of  power  consequent  on  the 
surrender  of  patronage  to  an  executive  responsible  to 
the  local  parliament."  But  "incessant  watchfulness 
and  some  (  ^xterity  are  requisite  to  prevent  him  fron 
falling,  on  the  one  side,  into  the  neant  of  mock  sove- 
reignty, or  on  the  other  into  the  dirt  and  confusion  of 
local  factions."" 

To  the  question,  "  whether  the  theory  of  the  respon- 
sibility of  provincial  ministers  to  the  provincial  parlia- 
ment, and  of  the  consequent  duty  of  the  governor 
to  remain  absolutely  neutral  in  the  strife  of  political 
parties,  had  not  a  necessary  tendency  to  degrade  his 
office  into  that  of  a  mere  roi  faluktnt  ? "  Lord  Elgin 
gave  an  unqualified  negative.  "  I  have  tried,"  he  said, 
"  both  systems.  In  Jamaica,  there  was  no  responsible 
government ;  but  I  had  not  half  the  power  I  have  here, 
with  my  constitutional  and  changing  cabinet."  Even 
on  the  viceregal  throne  of  India,  he  missed,  at  first, 
something  of  the  authority  and  influence  which  he  had 


; 


•  Wulrond's  Letters  of  Lord  Elgin,  pp.  40,  41. 


60 


PARLUMENTARY  GOVERNMENT  IN  THE  COLONIES. 


li 


lli 


exercised,  as  constitutional  governor,  in  Canada.  This 
influence,  however,  was  "  wholly  moral,  —  an  influence 
of  suasion,  sympathy,  and  moderation,  v/liich  softens 
the  temper  while  it  elevates  the  aims  of  local  politics."' 

The  success  of  responsible  government  in  Canada, 
under  the  presidency  of  Lord  Elgin,  led  to  its  gradual 
introduction  into  the  maritime  colonies  of  British  North 
America,  and  subsequently  into  the  several  colonies  of 
Australia  wherein  representative  institutions  had  been 
established  ;  and  into  New  Zealand,  Tasmania,  and  the 
Cape  of  Good  Hope. 

Ultimately,  upon  the  confederation  of  the  provinces 
of  Upper  and  Lower  Canada,  Nova  Scotia,  and  New 
Brunswick,  into  one  dominion,  under  the  Crown  of 
Great  Britain  and  Ireland,  in  1867,  it  was  provided,  in 
the  imperial  act  of  union  that  the  constitution  of  the 
new  dominion  should  be  "  similar  in  princi23le  to  that 
of  the  United  Kingdom."  « 

Responsible  government  was  introduced  into  Nova 
Scotia  and  into  New  Brunswick  in  1848,  whilst  Earl 
Grey,  an  experienced  statesman,  and  an  able  writer 
provinces,  upon  Constitutional  government,  held  the  seals  of  the 
colonial  office.'' 

At  the  outset,  a  difficulty  arose  in  Nova  Scotia,  in 
regard  to  the  application  of  the  new  tenure  of  appoint- 
ments to  office,  which  serves  to  explain  the  extent  to 
which  the  imperial  government  was  prepared  to  con- 
cede the  principle  of  non-interference  in  matters  of 
local  concern,  and  at  the  same  time  to  show  the  legiti- 
mate extent  of  the  powers  of  a  governor. 

In  a  despatch  to  Governor  Harvey,  of  Nova  Scotia, 


Responsi- 
ble' go- 
vernment 
in  the 
maritime 


'  Walrond's  Letters  of  Lord  EI-  North  American  provinces  and  the 

gin,  pp.  I'J.'),  V2(].  secretary  of   state,  relative    to   tho 

«  British    North    America   Act,  introduction  of  respoiisihio  povern- 

1867,  .11  Vict.  c.  3,  preamble.  nuMit    therein.      Commons    Tapers, 

'>  See    the    correspondiMice    be-  1847-48,  vol.  xlii.  pp.  51-86. 
tweeii  the  governors  of  the  Britisli 


** 


PARLIAMENl  VRY  GOVERNMENT  IN  THE  COLONIES. 


61 


dated  March  31,  1847,  Earl  Grey  adverted  to  certain 
necessary  qualifications  and  restrictions  in  the  applica- 
tion of  parliamentary  institutions  to  the  colonies.  He 
dwelt  with  much  emphasis  upon  the  importance  of 
"  ahstaining  from  going  further  tlian  can  be  avoided, 
without  giving  up  the  principle  of  executive  responsi- 
bility, in  making  the  tenure  of  offices  in  the  public  ser- 
vice dependent  upon  the  result  of  party  contests;" 
and  he  advised  that,  with  the  exception  of  a  very  few 
prominent  and  necessarily  political  offices,  the  remain- 
ing appointments  to  public  employ  should  be  held  inde- 
pendently of  party,  and  be  virtually  irremovable,  except 
for  obvious  misconduct  or  unfitness.  The  colonial  sec- 
retary likewise  pointed  out  the  necessity,  on  the  part 
of  the  people  of  Nova  Scotia,  of  refraining  to  effect 
any  reform  in  their  institutions,  however  just  or  de- 
sirable, at  the  cost  of  injustice  to  individuals.  And 
therefore,  that,  in  replacing,  by  political  heads  of  de- 
partments, men  who  had  served  faitlifully  under  a 
non-political  tenure,  it  would  be  moso  ..nfair  not  to 
compensate  those  who  had  been  removed  from  office, 
on  this  account,  by  ensuring  them  a  provision  that 
would  mal^e  up  for  the  loss  of  official  income.' 

Nevertheless,  tlie  first  administration  formed  in  Nova  Rosponsi- 
Scotia,  under  responsible  government,  ignored  the  wise 
and  considerate  counsels  of  Earl  Grey  in  this  particu- 
lar, and  insisted  upon  the  removal  of  an  old  public  offi- 
cer, who  filled  the  position  of  colonial  treasurer  (and 
whose  office  it  was  proposed  to  divide  into  two  political 
departments,  —  tliat  of  a  receiver-general  and  of  a 
financial  secretary),  —  without  making  any  compen- 
sation to  him  for  his  loss  of  office.  The  governor 
demurred  to  this  proceeding ;  but  his  objections  were 
overruled.  He  then,  at  the  suggestion  of  Earl  Grey, 
directed  that  the  whole  correspondence   on   the  sub- 


l)k'  go- 
voniment 
ill  Nova 
Sc-utia. 


Commons  Papers,  1847-48,  vol.  xlii.  p.  77. 


I 


62        PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

ject  should  be  submitted  to  the  colonial  legislature. 
This  was  done  ;  but  the  Legislative  Council  and  the 
House  of  Assembly  upheld  the  ministry,  and  passed  an 
act  for  the  division  of  the  otlice,  as  above-mentioned, 
without  making  any  provision  for  the  existing  incum- 
bent, who  was  accordingly  left  without  redress. 
.  The  non-intervention  of  the  imperial  government  to 
prevent  such  an  act  of  personal  injustice  was  regarded 
by  many  inhabitants  of  Nova  Scotia  with  alarm  ;  and 
they  petitioned  the  Tmpovial  Parliament,  representing 
the  injury  sustained  -.he  province  in  the  loss  of  the 
supervision  of  imperia'  uit  iv  rityas  a  safeguard  against 
oppression  or  abuse  of  powei  '•»';  the  local  government. 
This  petition  gave  rise  to  a  long  debate  in  the  House 
of  Lords,  on  March  26,  1849,  wherein  leading  states- 
men of  both  parties  expressed  themselves  freely  upon 
the  question,  but  without  any  motion  being  proposed 
thereon. 

Earl  Grey  defended  the  course  taken  by  himself  Jind 
by  Governor  Harvey,  upon  this  occasion.  He  showed 
that,  as  a  general  rule,  the  advice  given  to  the  local 
authorities,  up(m  the  introduction  of  responsible  go- 
vernment, Inul  been  favourably  received,  and  frankly 
adopted  ;  that,  in  the  present  instance,  there  were  cir- 
cumstances (which  he  explained)  that  rendered  the 
action  of  the  local  government  less  objectionable  than 
would  at  first  appear;  and  that,  for  the  governor  to 
have  insisted  upon  compensation  to  the  ex-treasurer, 
would  have  led  to  the  resignation  of  his  ministers, 
would  have  caused  "the  aftiiirs  of  the  colony  to  be 
thiown  into  confusion,"  and  "•  would  have  been  an 
overstraining  of  the  powers  of  the  Crown."  On  the 
other  hand,  the  secretary  of  state  felt  "■  bound  to  .issert 
that  the  power  and  influence  of  the  Crown  are  by 
no  means  to  be  inefiective  or  unimportant."  Doubt- 
less,  that  power  "  should  be   used,  not  resolutely  to 


PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


63 


resist  and  oppose,  but  judiciously  to  check  and  guide, 
the  public  opinion  of  the  colonies  into  proper  channels." 

Ilis  advice  to  Sir  John  Harvey  had  been :  ''  Act 
strictly  upon  the  principle  of  not  identifying  yourself 
with  any  one  party ;  but,  instead  of  this,  making  your- 
self both  a  mediator  and  a  moderator  between  the 
influential  of  all  parties.  In  giving,  therefore,  all  fiiir 
and  proper  support  to  your  council  for  the  time  being, 
you  will  carefully  avoid  any  acts  which  can  possibly  be 
supposed  to  imply  the  slightest  personal  objection  to 
their  opponents,  and  also  refuse  to  assent  to  any  mea- 
sures which  may  be  proposed  to  you  by  your  council 
which  may  appear  to  you  to  involve  an  improper  exer- 
cise of  tlie  authority  of  the  Crown  for  party  rather  thai 
for  public  objects. 

"In  exercising,  however,  this  power  of  refusing  ^o 
sanction  measures  which  may  be  submitted  to  you  by 
your  council,  you  must  recollect  that  this  power  Cx 
opposing  a  check  upon  extreme  measures,  proj  ^ed 
by  the  party  for  the  time  in  the  government,  depends 
entirely  for  its  efficacy  upon  its  being  used  sparingly, 
and  with  the  greatest  possible  discretion.  A  refusal  to 
accept  advice  tendered  to  you  by  your  council  is  a 
legitimate  ground  for  its  members  to  tender  to  you 
their  resignation ;  a  course  they  would  doubtless  adopt, 
should  they  feel  that  the  subject  on  which  a  difference 
has  arisen  between  you  and  themselves  was  one  upon 
which  public  opinion  would  be  in  their  favour.  Should 
it  prove  to  be  so,  concession  to  their  views  must  sooner 
or  later  become  inevitable  ;  since  it  cannot  be  too  dis- 
tinctly acknowledged  that  it  is  neither  possible  nor 
desirable  to  carry  on  the  government  of  any  of  the 
British  provinces  in  North  America  in  opposition  to  the 
opinion  of  the  inhabitants."  j 

i  ronminns  Tapers,  1847-48,  vol.  xlii.  p.  5G;  Hans.  Deb.  vol.  ciii. 
pp.  lJ(iJ-lL'80. 


^IM 


'  I'l 


i 


64        PARLIAMENTAltY  GO'n:RNMENT  IN  THE  COLONIES. 

RcsponBi-        Particulars  in  rcpjard  to  tlie  events  which  led  to  the 
vernmont    introduction  of  responsible  government  into  the  Austra- 
lia.   *  "^    lifiJ^  colonies,  and  of  tlie  circumstances  attending  the 
same,  will  be  found  in  the  sessional  papers  of  the  House 
of  Commons,  for  the  years  1849  to  1856  inclusive. 

General  authority  to  effect  the  clianges  in  the  consti- 
tutions of  the  several  Australian  colonies  necessary  for 
the  establishment  of  local  self-government  therein,  was 
conferred  by  the  Imperial  Act  13  and  14  Vict.  c.  59. 
Under  this  statute,  or  under  the  subsequent  Acts  of  the 
18  and  19  Vict.  cc.  54  and  55,  parliamentary  institu- 
tions were  introduced  into  Australasia  at  the  undermen- 
tioned periods ;  viz.,  into  Tasmania  and  Victoria,  in 
1855 ;  into  New  South  Wales  and  South  Australia,  in 
1856  ;  into  New  Zealand,  by  special  enactment,  in  1856  ; 
into  Queensland,  upon  its  being  set  apart  as  a  separate 
colony,  in  1860 ;  and  into  Western  Australia  in  March, 
1875. 

In  regard  to  New  Zealand:  so  early  as  in  1852,  a 
representative  constitution  had  been  granted,  by  the 
Imperial  Act  15  and  16  Vict.  c.  72.''  But  various 
causes  contributed  to  delay  the  accomplishment  of  the 
beneficent  intentions  of  the  mother  country  towards  this 
colony ;  and  it  was  not  until  September,  1855,  that  the 
governor.  Colonel  Gore  Browne,  communicated  to  the 
General  Assembly  the  desire  of  her  Majesty's  govern- 
ment that  the  colony  should  enjoy  "the  fullest  measure 
of  self-government  which  is  consistent  with  its  alle- 
giance to  the  British  Crown,"  and  that,  accordingly,  he 
would,  as  speedily  as  possible,  "carry  out  in  its  integrity 
the  principle  of  ministerial  responsibility ;  being  con- 
vinced that  any  other  arrangements  would  be  ineffec- 
tive to  preserve  that  harmony  between  the  legislative 
and  the  executive  branches  of  the  government,  which 


In  Now 
Zealand. 


IS 


^  For  the  oripiii  and  liistory  of  this  new  constitution,  see  Sir  C.  B. 
Addeiley  (Lord  Norton),  Colonial  I'olicy,  pn.  133-102. 


PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


65 


is  so  essential  to  the  successful  conduct  of  public  af- 
fairs." ' 

A  new  parliament  was  first  convened  ;  and  in  April, 
1850,  the  governor  commenced  negotiations  with  a  gen- 
tleman who  was  in  the  confidence  of  a  majority  in  tlie 
Assembly  on  the  formation  of  a  responsible  ministry. 

At  the  outset,  the  governor  dechired  his  determina- 
tion to  maintain  "  a  perfect  neutraUty  in  all  party  ques- 
tions." He  then  addressed  a  minute,  to  the  gentleman 
above  referred  to,  with  an  explanatory  memorandum, 
defining  his  own  views  as  to  the  relation  which  should 
subsist  between  himself  and  his  responsible  advisers. 

This  minute  states:  "(1.)  In  all  matters  under  the 
control  of  the  Assembly,  the  governor  should  be  guided 
by  the  advice  of  gentlemen  responsible  to  that  body, 
whether  it  is  or  is  not  in  accordance  with  his  own 
opinion  on  the  subject  in  question."  But,  in  explana- 
tion of  this  general  proposition,  it  is  added,  that  "  the 
governor  of  course  reserves  to  himself  the  same  consti- 
tutional rights,  in  relation  to  his  ministers,  as  are  in 
England  practically  exercised  by  the  sovereign  ;  "  and 
that  he  does  not  include  in  the  category  of  subjects 
under  the  control  of  the  Assembly  any  matters  affect- 
ing the  queen's  prerogative,  and  imperial  interests  in 
general.  (2.)  Upon  all  such  matters,  "  the  governor 
will  be  happy  to  receive  the  advice  of  his  executive 
council ;  but,  when  he  differs  from  them  in  opinion,  he 
will  (if  they  desire  it)  submit  their  views  to  the  con- 
sideration of  her  Majesty's  secretary  of  state  ;  adhering 
to  his  own  imtil  an  answer  is  received." 

Other  questions,  of  purely  local  concern,  are  discussed 
in  this  minute  ;  which  concludes  by  stating  that, "  in 
approving  appointments  to  vacant  offices,  the  governor 
will  require  to  be  assured  that  the  gentlemen  recom- 


'  Commons  Tapers,  1860,  vol.xlvi.  p.  109. 

5 


66        rARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


Responsi- 
ble go- 
vcriuiK'nt 


mended  are  fit  and  eligible  for  their  respective  situa- 
tions." 

These  terms  and  conditions  were  severally  accepted 
and  agreed  to  by  the  incoming  ministers,  with  the 
iinderstimding  that  they  were  open  to  alteration  by 
the  colonial  secretary.'" 

In  due  course,  the  secretary  of  state  for  the  colonies 
intimated  to  Governor  Browne  that,  ''  after  the  best 
consideration  which  they  could  give  to  the  subject,  her 
Majesty's  government  approve  of  the  principles"  upon 
which  he  proposed  to  administer  the  government  of 
New  Zealand,  as  the  same  were  defined  in  the  minute 
and  memorandum  aforesaid." 

Queensland,   which   previously  formed  part   of  the 

province  of  New  South  Wales,  wjis  set  apart  as  a  sepa- 

land"^^"^    rate  colony,  by  iixi  order  in  council,  issued    in    1859, 

under  the  authority  of  the  Imjierial  Act  18  and  19  Vict. 

c.  54. 

Sir  George  F.  Bowen  was  chosen  as  the  first  governor 
of  the  new  colony,  with  instructions  to  inauguijite  repre- 
sentative institutions  therein  in  combination  with  local 
selfgovernment. 

He  met  with  an  enthusiastic  reception  in  the  colony, 
and  in  reporting  to  the  secretary  of  the  state  (the  Duke 
of  Newcastle)  his  proceedings,  Sir  G.  Bowen,  in  a 
despatch  dated  April  7,  1860,  remarks  as  follows : 
*'  There  cannot,  in  my  opinion,  be  a  greater  mistake 
than  the  view  which  some  public  writers  in  England 
appear  to  hold  ;  namely,  that  the  governor  of  a  colony, 
\mder  the  system  of  responsible  government,  should  be, 
in  a  certain  sense,  a  roi  faineant.  So  far  as  my  observa- 
tion extends,  nothing  can  be  more  opposed  than  this 
theory  to  the  wishes  of  the  Anglo-Australians  them- 
selves.    The  governor  of  each  of  the  colonies  in  this 


«>  Commons  Papers,  1860,  vol.  xlvi.  pp.  228,  229. 
°  lOid.  p.  481. 


PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


67 


group  is  expected  not  only  to  act  as  the  head  of  society ;  Sir  a. 
to  encourage  literature,  science,  and  art ;  to  keep  alive,  H'^rov"r"" 
by  personal  visits  to  every  district  under  his  jurisdiction,  ".'"'''  ^""*'* 
the  feelings  of  loyalty  to  the  queen,  and  of  attachment 
to  the  mother  countrj^,  and  so  to  cherish  what  may  bo 
termed    the    imperial  sentiment :    but  he  is  also   ex- 
pected, as  head  of  the  administration,  to  maintain,  with 
the  assistance  of  his  council,  a  vigilant  control  and  su- 
pervision over  every  department  of  the  public  service. 
In  short,  he  is  in  a  position  in  wliicli  he  can  exercise  an 
influence  over  the  whole  course  of  affairs,  exactly  pro- 
portionate to  the  strength  of  his  character,  the  activity 
of  his  mind  and  body,  the  capacity  of  his  understanding 
and  the  extent  of  his  knowledge."" 

In  replies  to  addresses  presented  to  him  when  upon 
official  tours  through  Queensland,  Sir  G.  F.  Bowen  gave 
expression  to  his  idea  of  the  duties  and  responsil)ilities 
of  a  governor.  His  views  met  with  general  accc[;iance, 
and  the  people  everywhere  appeared  to  vie  with  each 
other  in  testifying  their  loyalty  to  the  queen,  their  cor- 
dial respect  for  her  representative,  and  their  attachment 
to  the  mother  country.'' 

In  further  explanation  of  his  sense  of  the  obligations 
entailed  upon  him  as  a  constitutional  governor.  Sir  G. 
F.  Bowen  mentions  in  a  subsequent  despatch,  dated 
Aug.  11,  18G0  that  the  impression  had  gone  abroad 
that  "  certain  very  unfit  persons  "  had  been  raised  to 
the  bench  in  Australia  "for  political  reasons,  by  the 
various  local  ministries  which  have  succeeded  each 
other  so  rapidly  in  this  quarter  of  the  world."  Whilst 
unwilling  to  rel.  ct  in  the  slightest  degree  on  other  go- 
vernors, who,  he  was  aware,  had  had  to  contend  with 
great  difficulties.  Sir  G.  Bowen  adds,  "  I,  for  one,  can- 
not bring  myself  to  assent  to  the  doctrine  (if  it  be  any- 


<•  Commons  Papers,  1861,  vol.  xl.  p.  607. 
P  Ibid.  pp.  007,  U13. 


ii 


4V 


,|i; 


fi 


68        TARLIAMENTATIY  GOVERNMENT  IN  THE  COLONIES. 


?tablishment 


liamentj 


where  held)  that  the 
government  absolves  the  representative  of  the  Crown 
from  all  responsibility  as  to  the  appointments  to  public 
offi(*es.  It  is  his  undouljted  ri<rht  and  duty  to  disallow 
ill-advised  acts  of  the  colonial  legislature,  and  1  venture 
to  think  that  he  is  a  fortiori  bound  to  refuse  his  sanc- 
tion to  the  employment  in  the  queen's  colonial  service 
■of  individuals  of  du))ious  character,  and  especially  to 
the  nomination  of  such  persons  to  ofliccs  like  those  of 
judges  and  magistrates  who  hold  her  Majesty's  commis- 
sion. In  accordance  with  this  view,  I  carefully  ex- 
amined, name  by  name,  with  my  executive  council, 
the  new  commission  of  the  peace,  admitting  oidy  those 
gentlemen  whose  character,  accjuirements,  and  social 
position  render  iiiem  worthy  of  so  honourable  and  im- 
])ortant  a  trust.  .  .  .  My  ])resent  ministers  cordially 
concur  with  the  principles  which  I  have  thus  attempted 
to  explain  ;  and  J  am  confident  that  I  shall  at  all  times 
be  sujiported  by  the  public  opinion  of  this  colony 
in  acting  on  them  finuly  and  consistently.  is  my 

intention  so  to  act,  with  the  approval  of  her  Majesty's 
government." '' 

Connnenting  upon  the  constitutional  rpiestion  mooted 
in  the  despatch  above  cited,  —  as  to  the  amount  of  in- 
lluence  to  be  exer(Msed  by  the  governor  of  a  colony  in 
which  representative  institutions  are  established,  —  the 
secretary  of  state,  in  a  despatch  dated  Nov.  2(»,  ISOO, 
observes  that  the  position  defined  by  Sir  (}.  F.  IJowen 
.s  one  which  may  ))e  occuj/ied  by  a  governor,  with 
great  projiriety,  and  with  the  utmost  advantage  to  the 
colon ^'  over  which  he  presides  ;  its  rights  and  duties 
being  at  once  sustained  and  limited  by  the  necessity  of 
finding  support  in  an  enlightened  ))ublic  opinion,  an«l 
the  services  of  ministei's  capable  of  carrying  on  the 


•J  Commons  rapois,  1861,  vol.  xl.  p   OW. 


I 


s 


go 
lei 


J 


PAULIAMENTAIIY  GOVERNMENT  IN  THE  COLONIES. 


C9 


government  of  the  colony  with  the  concurrence  of  the 
legislatiP'e."  '^ 

The  hitest  of  the  British  colonies  admitted   to  the  f^«pf  «»f 
privileges  of  local  self-government,  was  the   Cape   of  Hope. 
Good  Hope. 

By  letters-patent  dated  May  2.'i,  1850,  representji- 
tive  institutions  were  authorized  to  he  estahlished  in 
this  colony;  and  three  years  later  the  new  constitution 
was  introduced.  It  consists  of  a  governor,  holding  his 
commission  from  the  Crown ;  a  legislative  council  and 
a  house  of  assembly,  both  elected  by  the  people. 

Until  recently  the  Legislative  Council  was  composed 
of  eleven  members  for  the  western  and  ten  members 
for  the  eastern  province,  chosen  by  the  whole  body  of 
electors.  But  in  1874  the  country  was  divided  into 
seven  electoral  provinces,  each  of  which  returns  three 
meuibers  to  the  upper  chamber.  This  change  went 
into  operation  at  the  <lissoliition  of  parliament,  on 
September  12,  1878.  The  council  is  elected  for  ten 
years,  oiu'  nu)iety  retiring  every  live  years. 

The  House  of  Assembly  consists  of  sixty-eight  mem- 
bers, elected  for  five  years.  The  governoi"  may  dis- 
solve both  bouses,  or  he  may  dissolve  the  Assembly 
without  dissolving  the  other  liouse." 

The  intioduction  of  "responsible  government"  into 
this  colony  was  first  suggested  by  the  imjierial  govern- 
ment in  1800,  but  the  proposal  was  objected  to  by  tlie 
governor  (Sir  1*.  E.  Wodehou.<e),  and  was  regarded 
with  disfavour  at  the  Cape.  But  no  other  ])lan  ap|>ear- 
ing  to  promise  a  successful  administration  of  government, 
her  Majesty's  secretary  of  state  for  the  colonies  jigain 
urged  upon  the  colony  the  a(b)pti()n  of  ])arbam('utary 
institutions.  Accordingly,  in  1871,  a  bill  to  amend  the 
constitution    by  incorporating   therein    the   systein   of 


■■  CVtminnns  Tiihts,  1861,  vol.  xl.  ]».  (J71. 

•  C.  ().  List,  LS7!>,  i>.  ,Vi;  Kiityc.  HriUuiiiica,  Utli  etl.  j).  47. 


70 


PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


Colony. 


ministerial  responsibility  was  submitted  to  the  consid- 
eration of  the  local  parliament  by  the  governor.  It 
passed  the  House  of  Assembly,  but  was  rejected  by  the 
upper  house.  The  bill  was  again  introduced  in  the 
following  year,  when  it  was  agreed  to  by  both  cham- 
bers. It  was  necessarily  reserved  for  the  signification 
of  the  queen's  pleasure ;  but  the  royal  assent  was  an- 
nounced by  proclamation  on  August  28,  1872.*' 

Consequent  upon  this  change  in  the  constitution,  a 
new  commission  was  sent  to  the  governor  of  Ca2)e  Co- 
lony with  fresh  instructions,  similar  to  those  furnished 
to  other  colonies  possessing  local  self-government. 
Hosponsi-  13y  tlicse  instructions,  the  governor  was  enjoined,  in 
yprmmnt  the  oxccutiou  of  tlio  powcrs  intrusted  to  him  by  his 
''''^'  commission,  in  all  cases  to  consult  with  his  executive 
council,  "  excepting  only  in  cases  which  may  be  of  such 
a  nature  that,  in  your  judginent,  our  service  would 
sustain  material  prejudice  by  consulting  our  council 
thereu])on,  or  when  the  matters  to  be  decided  shall  be 
too  unimportiint  to  require  their  advice,  or  too  urgent 
to  admit  of  their  advice  being  given  bv  the  time  within 
which  it  may  be  necessary  lor  you  to  jict  in  respect  of 
any  such  matters :  Provided  that,  in  all  such  urgent 
cases,  you  do  su])se()uently,  and  at  the  earliest  practica- 
ble period,  conununicate  to  the  said  council  the  mea- 
sures \v!»ich  you  may  so  have  -adopted,  with  the  reasons 
thereof  And  we  do  authorize  row,  in  vour  discreticm, 
and  if  it  shall  in  any  case  appear  right,  to  act  in  the 
exercise  of  the  power  committed  to  you  by  our  said 
commission  in  opposition  to  the  a<lvice  which  may  in 
any  such  case  be  given  to  you  by  the  members  of  our 

'Commons   TajxTs,   1870,   vol.  Lord  lUadifonl,  who  (as  Sir  Frrdo- 

xlix.  p.  ;?ii!l;  lliiil.  1873,  vol.   xlix.  ric    Rogers)    was     pcrmaiifiit,    im- 

p.   'Jt{7.     TIh'  r«>asoiis   wliich  actii-  (l«>r-st'or<>tary  of  stat<>   for  Mm*  colo- 

atcd  tlic  h()iiit>  jjovt'niiiiciit,  ill  press-  iiics    wlicii    lliis   »pu'slinii  wjus   first 

iiig  upon  tli(!  Cape  colony  tli(!  adop-  innoted.     .Sec   t!   •   Nineteenth  Ceu- 

tioii  of  tho   system  of   responsildti  tury,  for  August,  187'J,  p.  *J7L 
government,    uro    ably  btateJ    by 


PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


71 


said  executive  council :  Provided,  nevertlieless,  that 
in  any  such  cu.se  you  do  fully  report  to  us,  by  the  first 
convenient  opportunity,  any  such  proceeding,  with  the 
grounds  and  reasons  thereof."  " 

These  provisions  In  the  revised   instructions  to  the  ^'"^^'•'^  •*<*• 

I  ^  ^  SlTVl'll  to 

governor  of  the  Cape  of  Good  Hope,  issued  after  the  iiit-CrovMi. 
concession  of  parliamentary  institutions  to  that  colony, 
exhibit  the  reserved  power  expressly  retained  by  the 
British  <j^overnment  in  order  to  prevent  the  grant  of 
local  sell-government  from  tending,  under  any  circum- 
stances, to  the  degradation  of  the  rights  inherent  in  the 
Crown  in  the  English  political  system  ;  and  as  a  con- 
stitutional barrier  against  the  possible  encroachment 
upon  those  rights  by  the  usurpation  of  power  on  the 
part  of  a  local  administration. 

Similar  provisions  to  guard  against  the  evils  of  demo- 
cratic ascendancy,  under  the  pretext  of  ''  responsible 
government,"  will  be  found  in  the  connnission  and  in- 
structions issued  to  Sir  James  Fergusson,  upon  his 
appointment,  in  1873,  as  governor  of  New  Zealand  ; ' 
in  the  more  recent  instructions  issued  in  A])iil,  1877, 
to  the  governor  of  South  Australia,  accompanying  the 
permanent  letters-patent  constituting  the  ollice  of  go- 
vernor in  that  colony; '"^  and  likewise  in  the  instructions 
issued  to  Sir  IJartle  Frcre,  upon  his  ap])ointi  lent  in 
February,  1877,  to  succeed  Sir  Henry  Barkley  as  go- 
vernor of  the  Cape  of  Good  Hope,  in  connection  with 
the  n(nv  letters-patent  for  the  permanent  establishment 
of  that  olilce." 

As  the  result  proved,  this  constitutional  restriction 
upon  the  undue  assumption  of  power  by  a  colonial 
ministry  under  responsible  government  was  —  so  far  at 


il. 


■  CnmmnnH  Papers,  1873,  vol,          "  South    Atistraliii    rail.    Proo. 

xlix.  p.  ;(:is.  1877.  no.  l(i!>. 

*  New    Zcalantl    Assembly  Pa-         '  Capoof  (Jood  Mope  Assembly 

pcrs,  1873,  A.  U.  Papers,  1878,  A,  8. 


■  > 


72        PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


Dismissal 
of  his  ini- 
nistiTH  by 
G«)vi'riior 
Frere. 


Qucon's 
('(iiiiinis- 
siiMKT  for 
Soutli 
Africa. 


least  as  respects  the  Cape  colony  —  a  most  necessary 
act.  It  enabled  the  governor  to  uphold  and  maintai  j 
the  rights'  of  the  Crown  upon  a  grave  political  ener- 
genrv.  whon  those  rights  were  assailed  by  the  first 
oiin;strv  which  was  formed  under  the  new  constitution. 
In  February,  1878,  the  governor  of  the  Cape  was  com- 
pelled in  vindication  of  his  office  to  assert  the  lawful 
supremacy  of  the  Crown  by  the  dismissal  of  his  minis- 
ters, at  a  time  when  they  were  in  full  possession  of  the 
co!ifidence  of  the  local  parliament,  and  able  to  com- 
mand a  majority  in  the  House  of  Assembly.  Further 
particulars  of  this  case  will  be  found  in  another  part  of 
this  volume.  It  may  suffice  to  add,  in  this  place,  that 
Sir  Bartle  Frere's  conduct  upon  this  trying  occasion  w^as 
warmly  approved  by  her  Majesty's  government,  and 
that  the  new  administration  which  he  formed,  after 
dismissing  the  Molteno  ministry,  was  sustained  (without 
a  previous  dissolution  of  parliament)  by  n  decisive 
vote  in  the  local  assembly.*' 

In  addition  to  his  ordinary  commission  as  governor 
of  the  colony,  a  further  commission  was  granted  to  tlie 
governor  of  the  Cape  of  Good  Hope,  appointing  him  to 
be  her  Majesty's  high  commissioner  for  the  territories  of 
South  Africa  adjacent  to  the  said  colony.  This  com- 
mi.s^•ion  is  issued  for  the  purpose  of  en."*>ring  the  go- 
vernor to  act  in  the  name  and  on  behal  T  the  queen, 
and  to  represent  her  crown  and  authority  in  respect  of 
the  native  tril)es  in  South  Africa ;  and,  further,  to  em- 
])ower  him  to  hold  communication  with  the  authorities 
of  the  two  republics  established  in  South  Africa,  and 
willi  the  lopresentative  of  any  foreign  power.  In  the 
exercise  of  this  trust,  the  high  connnissioner  is  required 


y   T^  s-,.atrlio8  of  rolonial   .sorro-  1878,    C.   2079,   p.   121;    riml    C. 

tary  (Sir    M.  Ilicks-Mc^'cli)   to   (Jo-  L*l  II.  p.   21:5.     And  see  liitt  Xino- 

vciiior    Frcic.  (lilted   ,V.,ircli  21  iuid  tci'iiUt     (ciitury,     lor     Uecember, 

July  25,   ItfTb;  Coimnona  raiieiB,  lH7b,  p.  lUOl). 


PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES.       73 


to  irv'^e  and  obtain  the  co-operation  of  the  ibrei^ni 
powers  aforesaid,  towards  the  preservation  of  peico  an  I 
safety  in  South  Africa,  ami  the  general  welfare  and 
advancement  of  its  territories  and  peop^  ^s/ 

By  the  terms  of  this  commission,  the  governor  is 
required,  in  his  capn«^ity  of  queen's  high  commissioner, 
to  do  whatever  may  be  lawfully  and  discreetly  done 
to  prevent  the  recurrence  of  any  irruption  into  the 
British  posi^essions  of  the  tribes  inhabiting  the  terri- 
to  ies  aforesaid  ;  and  all  persons  in  the  said  British 
possessions  are  commanded  to  aid  and  assist  him  to 
this  end.  In  the  performance  of  this  duty  the  go- 
vernor's functions  are  clearly  defined  in  his  separate 
commission;  and  they  are  not  subject  to  the  limita- 
tions imposed  upon  his  authority  in  civil  matters,  lying 
entirely  within  the  Cape  colony,  by  responsible  govern- 
ment as  established  at  the  Cape.  On  the  occurrence 
of  any  difl'erence  of  opinion  between  the  governor  and 
his  ministers  for  the  time  being,  as  to  the  conduct  of 
a  war  with  the  native  tribes  in  South  Africa,  it  is  clear 
that  the  local  administration,  whilst  aHbrding  to  the 
governor  the  benefit  of  their  r.vlvice  and  co-operation, 
should  not  hesitate  to  subordinute  their  oi)inions  to 
his ;  it  being  obvious  that  the  successful  and  speedy 
repression  of  any  such  outbreak  "concerns,  either 
directly  or  indirectly,  the  interests  of  large  numbers 
of  her  Majesty's  subjects  in  South  Africa,  living  alto- 
gether beyond  the  jurisdiction  of  any  single  colonial 
administration."' 

The  first  ministry  under '* responsible  government"  npnofitsof 
in   the   Cape  colony,  took   ofhce   in   December,  1S72.  Lk-'g"/' 
This  change  in  the  colonial   administration   had   the  J,]''t'i',"'^"' 

Capo. 

«   Spo   tha  coinmissioii  in  Capo  Hicks-Beach)    to   Governor    Krcro, 

Assembly  Votes,  1878,  Amicxures,  March    21,    1878;    t'oni.     I'ai>er3, 

A.  8,  no.  4.  1878,  c.  iWO,  p.  125. 

•  Colonial    Secretiiry    (Sir    M. 


# 


r 


n 


te-l 

lit 


Abnndnn- 
iiu'iit  of  ro' 
sponsilile 
poviTii- 
iiu'iit  in 
tlio  West 
Indies. 


74        PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES.       * 

immediate  effect  of  substituting  "  a  single  strong  go- 
verning power  ...  for  the  dual  forces  of  the  executive 
-■nd  legislature,  which  were  before,  as  often  as  not, 
exerted  in  oj^posite  directions.'"*  And  at  the  close  of 
the  session  of  1873,  the  governor  was  able  to  declare 
that  "  in  no  previous  session  does  it  appear  that  such 
harmonious  action  has  prevailed  between  the  execu- 
tive and  both  branches  of  the  legislature,  nor  has  the 
business  of  legislation  ever  bt?en  carriefl  on  so  satis- 
factorily and  at  the  same  time  so  expeditiously."'' 

This  administration  continued  in  oihce  until  Feb- 
ruary, 1878,  when,  as  has  been  already  intimated,  its 
career  of  usefulness  was  brought  to  an  abrupt  close, 
under  circumstances  which  will  receive  due  considera- 
tion in  a  subsequent  chapter. 

In  closing  our  brief  summnry  of  the  circumstances 
attending  the  introduction  of  parliamentary  gov^ern- 
meut  into  the  principal  colonies  of  Great  Britain,  it 
merely  remains  to  add  that,  in  some  of  the  smaller 
and  less  progressive  colonies,  an  attemi)t  to  establish 
local  self-goveuiment  was  made,  which  proved  to  be  a 
failure.  After  a  fruitless  endeavoiu'  to  work  the  system 
successfully,  it  was  abanduneil,  nnd  a  simpler  and  more 
effective  method  of  administration  resorted  to.  This 
was  notably  the  case  in  regard  to  Jamaica,  whicli  for 
nearly  two  centuries  had  possessed  a  representative 
constitution,  and  had  been  latterly  intrusted  with  a 
responsible  governuMjut''  In  1800,  the  local  legisla- 
tiu'e,  at  the  instance  of  Governor  Eyre,  unanimously 
agreed  to  abx^gate  nil  the  existing  nuichinery  of  le- 
gislation, and  to  accej,t  in  lieu  thereof  any  form  of 
govennnent  that  m'.>hi  be  approved  by  the  Crown. 
Accordingly  by  an  imperial  act,  passed   in  the  same 


•»  rom!)io!i:<  ru|M>r:..  1874,  vol.  xliv.  p.  M;'. 

0  Vdtr-i  Jill  l'roa;t'(i.Mi,'.>,  ('i»iK(  Assoulilv,  1873,  p.  400. 

*  Seo  l>vri\:  I'apers,  1864,  vol.  xiii-  p.  200. 


PARUAMENTAIIY  GOVERN^rKNT  IN  THE  COLONIES. 


year,  a  new  constitution  was  conferred  upon  the  island, 
which  is  still  in  operation.  It  consists  of  a  legislative 
council  composed  of  an  equal  number  of  oilicial  and 
of  non-otlicial  members,  together  with  a  privy  council, 
whose  advice  the  governor  is  free  to  accept  or  to 
reject  at  his  discretion." 

The  example  of  Jamaica,  in  surrendering  her  free 
institutions  and  becoming  :i  crown  colony,  was  subse- 
quently followed  by  the  \'irgin  Islands  and  by  Moutser- 
rat,  which  were  afterwards,  with  other  islands  adjacent, 
constituted  into  u  sinule  federal  colon v,  termed  the 
Leeward  Islauds,  by  the  Imperial  Act  .'J4  and  oo  Vict, 
c.  107,  passed  in  IcSTl.  In  1S7(J,  the  separate  govern- 
ments of  the  islands  of  St.  Vincent.  T()l)ago,  and  Gre- 
nada, })assed  acts  to  repeal  their  existing  constitutions, 
and  to  vest  the  government  in  the  ({ueen,  leaving  it 
to  her  Majesty  to  erect  such  a  form  of  govermuent 
therein  as  should  be  deemed  most  suitable  for  their 
future  welfare.  Whereupon  a  new  legislative  council 
was  established,  to  assist  the  governor,  and  composed 
of  not  less  than  three  persons,  to  be  appointed  by  royal 
warrant.  The  persons  already  nominated  are  the  co- 
lonial secretary,  the  attorney-general,  and  the  trea- 
surer."^ 


i 


•  AfMcrlcy,  foloniul  Pulicv,  pp.  'J'JT  'J:n. 

'   //-/</.  pp.  -JiL'.  -JTl;    |i„i..  Act  ;{!)  iiii.l    10  Vict.  c.  47;   Hans.   Deb. 
vol.  ccxxx.  p.  lUJU;  (J.  U.  List,  IbTli,  p.  IdU. 


■i 


n 


i 


\\ 


CHAPTER  IV. 

PRACTICAL  OPERATION  OF  PAHLIAMKXTARY   GOVERNMENT 
IN  THE  IJUITISII   COLONIES. 

PART  I. 

LMPERLVL   DOMINION    EXnUCISAnLK  OVER  SELF-GQVEUNING 

COLONIES. 

a.  In  the  appointment  and  control  of  Qovernors. 
Spcrotary    r^^^^  jiutliority  of  tlio  Crowii  ovcr  the  colonies  of  Great 

of  state  .... 

for  the  BritJiin  is  directly  administered  throuii-h  the  seeretary 
of  state  for  the  colonies.  This  oflieer  is  primarily  and 
personally  responsible,  both  to  the  sovereign  and  to 
the  imperial  ])arliament,  ibr  all  oflicial  acts  of  any 
eolonial  governor,'  notwithstanding  the  operation  of 
the  rule  of  collective  responsibility,  which  renders  the 
whole  administration  liable  for  the  acts  of  the  several 
members  of  which  the  governing  body  is  composed. 
For  the  ancieni  -naxim  still  holds  good,  that  "the  Con- 
stitution of  this  country  always  selects  for  responsi- 
bility the  individual  minister  who  docs  any  particular 
act.'"' 

The  supremacy  of  the  Ciown  over  colonics  which 
possess  representative  institutions,  and  have  been  fur- 
ther intrusted  with  the  privileges  of  local  self-govern- 
ment, l)y  the  incorporation  into  their  political  system 
of  the  principle  of  "  responsible  government."  is  ordi- 
narily exercised  only  in  the  appointment  and  control 


•  Todil,  Tail.  Govt.  vol.  ii.  pp.  520,  522. 
b  lUiiL  p.  U7U. 


IMPERIAL  CONTROL  OVER   COLONIAL  GOVERNORS. 


77 


of  the  governor  as  an  imperial  officer ;  and  in  the 
allowance  or  disallowance  in  certain  cases  of  the  enact- 
ments of  the  local  legislature. 

The  secretary  of  stat')  for  the  colonies  has  the  privi- 
lege of  rcconnnending,  for  the  sanction  of  the  so- 
vereign, suitable  persons  to  fill  the  office  of  governor : 
sul)ject,  however,  to  the  approval  of  the  prime  minis- 
ter, whose  opinion,  especially  in  the  case  of  the  more 
important  governorships,  would  have  much  weight. 

Colonial  governors  are  appointed  by  letters-patent 
under  the  great  seal.  As  the  preparation  and  issue 
of  these  formal  and  authoritative  instruments  usually 
takes  considerable  time,  it  became  the  practice,  prior 
to  the  year  1875,  to  issue  a  minor  commission,  under 
the  royal  sign-manual  and  signet,  to  a  newly  u})polnted 
governor,  empowering  him,  meanwhile,  to  act  under 
the  commission  and  instructions  given  to  his  prede- 
cessor in  ofUce.  But  doul)ts  having  been  raised  in 
certain  cases,  whether  these  minor  commissions  effec- 
tually authorized  the  holder  to  perform  all  the  duties 
and  functions  appertaining  to  his  office,  it  was  in  1875 
deemed  expedient  by  her  Majesty's  government,  under 
the  advice  of  the  law  officers  of  the  Crown,  to  issue, 
on  behalf  of  each  colony  of  the  empire,  letters-patent 
constituting  permanently  the  ofTice  of  governor  there- 
in;  and  providing  that  all  future  incumbents  of  this 
office  should  be  appointed  by  special  commission  under 
the  royal  sign-manual  and  signet  to  fulfil  the  duties 
of  the  same,  under  the  general  authority  and  directions 
of  the  letters-patent  aforesaid,  and  of  the  permanent 
instructions  to  be  issued  in  connection  therewith. 

But,  before  introducing  this  change,  a  circular  des- 
patch, dated  Oct.  20,  1875,  was  addressed  to  all  colo- 
nial governors,  enclosing  a  copy  of  the  proposed  new 
forms,  and  inviting  suggestions  to  be  submitted  by  the 
governor,  after  consultation  with  his  responsible  miiiis- 


Appoint- 

IIK'Ul  of 

govcniors. 


Tlicir 
coiiitiiis- 
sioii  and 
iiistruc- 
tiunii. 


!lti. 


»Tr.T:if^xK;:.i: 


tS       rAULIAMKNTAliY  GOVERNMENT  IN  THE  COLONIES. 


I  ' 


New  in- 
8triiiiu>nt8 
for  iio- 

ViTIKirs   of 

Cuiiuda. 


ters,  for  Piicli  ultorntionH  as  might  appear  to  them  to 
be  Hpecially  advisable  in  the  case  of  the  paiticuhir 
colony. 

Upon  the  receipt  of  this  despatch  by  the  Ejirl  of 
Diillerin  (governor-general  of  Canada),  he  referred  it 
to  a  eomniittee  of  the  j)rivy  council  for  consideration. 
And  on  April  C»,  187f»,  his  lordship  forwarded  to  the 
Earl  of  Carnarvon  (colonial  secretary)  a  memoranduin, 
drawn  up  by  Mr.  Edward  Blake  (minister  of  justice), 
and  by  a  sub-committee  of  the  privy  council,  which 
embodied  various  importJint  suggestions  in  regard  to 
the  proper  form  of  ji  permanent  connnission  and  in- 
structions for  the  ollice  of  governor-general  of  Canada. 

Ai)|)roving  of  the  idea  of  a  revised  and  permanent 
form  I'or  these  instruments,  Mr.  Blnke  nevertiieless  sub- 
mitted that  the  peculiar  position  of  Canada,  in  relation 
to  the  mother  country,  entitled  her  to  special  consi- 
deration, and  that  the  existing  forms,  while  tiny  might 
be  eminently  suited  to  other  colonies,  were  inappli- 
cable and  objectionable  in  her  case.  For  Canada  is 
not  merely  a  colony  or  province  of  the  em[)ire,  she 
is  also  a  dominion,  composed  of  seven  ])rovinces  fede- 
rally united  under  an  im[)crial  charter  or  act  of  Parlia- 
ment, which  expressly  recites  that  her  constitution  is 
to  be  similar  in  ]>rinciple  to  that  of  the  United  King- 
dom. In  addition  to  large  powers  of  legislation  and 
government  over  the  conl'ederatcd  provinces,  this  do- 
minion has  been  intrusted  with  absolute  powers  of 
legislation  and  administration  over  the  peo[)le  and 
territories  of  the  nortiiwest,  out  of  which  she  has 
already  created,  and  is  empowered  further  to  create 
at  discretion,  new  ])r()vinces  with  representative  insti- 
tutions, (o  be  hereafter  admitted  to  share  in  the  privi- 
leges now  assigned  to  the  older  provinces.  Canada, 
therefore,  is  undoubtedly  entitled  to  "  the  fullest  freedom 
of  political  government;"  and  her  rights,  in  this  respect, 


\f: 


IMI'KniAL  CONTRnL  OVKR  COLONIAL  GOVKUNOKS. 


79 


should  l)e  recognized  and  cinhodiod  in  the  authorita- 
tive documents  of  the  connnissi(»n  and  instructions  from 
the  Crown  to  the  n;overnor-^^eneral. 

In   conformity  M'ith   this   idea,  —  tlio  correctness  of  rimnpos 
Avhich   could   not  he  disputed,  and  Avhich  was  frankly  [I"E 
admitted    hy  her   Majesty's   <^()venunent,  —  Mr.  IJlako 
su;:^Lrestc(l  numerous  alterations  from  the   forms  herelo- 
fore  in   use,  and  submitted   reasons   in  favour  of  the 
ameiuhnenls  ])i()posed. 

As  a  foundation  pj'inciple,  necessary  to  he  asserted 
and  maintained,  in  any  instrument  whicli  mi^dit  ho 
issued  lor  the  ])ur])ose  of  defmiuj^  the  ])owers  of  a  <^o- 
vernor-i!;eneral  in  Canada.  Mr.  lJlai\e  contended  that  it 
ouijjht  to  he  (dearly  understood  that,  '-as  a  rule,  tho 
•rovernor  docs  and  must  act  throuirh  the  agency  (and 
upon  the  advice)  of  ministers  ;  and  ministers  must  he 
responsible  for  such  action,"  —  save  ''only  in  the  rare 
instancies  in  which,  owiuLi:  to  the  existence  of  suhstan- 
tial  im})erial  as  distingui-lied  from  Canadian  interests, 
it  is  consideri'd  that  full  freedom  of  action  is  not  vested 
in  the  Canadian  ])eople." 

In  a  despatch  dated  May  22,  1870,  Lord  Carnarvon 
thanks  the  governor-general  for  the  ahove-mentioned 
memorandum,  and  promises  that  the  suggestions  con- 
tained therein  shall  receive  due  consideration,  when 
the  charter  to  incoi'porate  the  ofliee  of  trovernor-ueneral 


o 


f  C 


di 


'poi 


mada  is  Deinir  nrenare 


l)rep; 


Ahout  this  period,  Tjord  Carnarvon  had  expressed  a 
desire  to  have  a  personal  conference  with  the  Canadian 
minister  of  justice,  in  reference  not  oidy  to  the  amended 
forms  of  the  royal  instructions  jind  commission  to  the 
governor-general,  hut  alst)  on  certjiin  other  ])uhlic  ques- 
tions of  importance,  which  had  arisen  out  of  the  rela- 
tions between  Canada  and  the  mother  country. 

Accordingly,  upon  a  report  of  a  committee  of  the 
privy  council,  approved  hy  his  excellency  the  gover- 


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80        TARLIAAIENTARY  GOVERNMENT  IN  THE   COLONIES. 


nor-general  in  council,  on  May  29, 1876,  Mr.  Blake  was 
deputed  to  visit  England,  for  this  purpose.  His  report 
of  his  official  action  and  intercourse  with  the  colonial 
•secretary  was  submitted  to  the  Canadian  government, 
and  in  the  following  year  was  laid  before  Parliament. 
So  far  as  the  governor's  commission  and  instructions 
were  concerned,  the  expression  of  Mr.  Blake's  views 
on  this  subject  elicited  from  Lord  Carnarvon  the  obser- 
vation that  these  suggestions  appeared  to  his  lordship 
to  be  of  much  importance,  not  only  with  reference  to 
the  Dominion,  but  as  applicable  also  to  the  circum- 
stances of  some  other  colonies.  Ere  long,  Lord  Carnar- 
von hoped  to  be  in  a  position  to  inform  Lord  Dufferin 
that  he  was  prepared  to  advise  an  amendment  of  the 
existing  commission  and  instructions,  in  general  accord- 
ance with  Mr.  Blake's  representations.'' 

On  Feb.  10,  1877,  Lord  Carnarvon  transmitted  to 
Lord  Dufferin  drafts  of  letters-patent,  constituting  the 
office  of  governor-general  of  the  Dominion  of  Canada ; 
of  the  royal  instructions  to  accompany  the  same ;  and 
of  a  commission  appointing  a  governor-general.  His 
lordship  intimated  that  these  instruments  had  been 
expressly  framed,  so  as  to  meet  the  views  of  the  Cana- 
dian ministers ;  and  he  invited  their  opinion  upon  the 
result.  No  time  was  lost,  by  Lord  Duffi^rin,  in  reply- 
ing to  this  communication.  On  March  8,  his  Excellency 
forwarded  to  the  colonial  secretary  a  minute  of  coun- 
cil, and  a  report  from  the  minister  of  justice  (Mr.  Blake), 
expressing  a  general  approval  of  the  terms  of  these 
drafts;  but  suggesting  certain  alterations  therein, 
which,  if  carried  out,  would  render  them  entirely 
acceptable. 

Lord  Carnarvon,  in  his  reply  to  this  despatch,  dated 
April  9,  1877,  expresses  his  pleasure  at  the  approbation 


' 


"  For  !Mr.  Blake's  Report,  and  the  correspondence  connected  there- 
with, see  Canada  boss.  Tapers,  1877,  no.  13. 


' 


IMPERIAL  CONTROL  OVER  COLONIAL  GOVERNORS. 


81 


with  which  the  drafts  had  been  received,  and  his  belief 
that  there  would  be  no  difficulty  in  arriving  at  a  mutu- 
ally satisfactory  settlement  of  the  few  points  still  in 
debate.  To  this  end,  he  forwarded  amended  drafts, 
which  were  substantially  in  agreement  with  the  changes 
suggested  by  Mr.  Blake.  He  had,  however,  retained  in 
a  modified  form  the  clause  in  the  commission  which  in- 
dicates the  independent  action  to  be  taken  by  the 
governor-general,  in  the  exercise  of  the  prerogative  of 
pardon,  in  cases  of  an  imperial  nature  ;  because,  "•  when 
interests  outside  of  the  Dominion  are  directly  affected, 
there  is  no  authority  except  the  imperial  authority 
which  is  in  a  position  to  decide." 

In  answer  to  the  foregoing  despatch,  Lord  Dufferin, 
on  June  14,  1877,  transmitted  to  Lord  Carnarvon  a 
minute  of  council  and  memorandum  from  Mr.  Blake, 
representing  that  the  specified  changes  in  the  draft 
commission  and  instructions  were  for  the  most  part 
quite  satisfactory ;  but  yet  submitting  the  expediency 
of  transferring  the  clause  concerning  the  administra- 
tion of  the  prerogative  of  pardon  from  the  commission 
of  the  governor  to  his  instructions,  so  as  to  admit  of 
occasional  modifications  of  the  rule  in  exceptional 
cases ;  also,  suggesting  the  omission  of  a  word  in  this 
clause,  which  involved  no  material  principle. 

On  Nov.  8,  1877,  Lord  Carnarvon  writes   to  Lord  New 
Dufferin,  accepting  unreservedly  the  amendments  pro-  agreed 
posed  in  the  preceding  communication.     Whereupon,  Canada!^ 
on   December    13,    Lord   Dufferin    forwards    another 
minute  of  council,  recommending  that  the  new  drafts 
should  be  promulgated  previous  to  the  approaching 
session  of  the  Canadian  Parliament.     Lord  Carnarvon, 
however,  in  a  despatch  dated  Jan.  10,  1878,  replies 
that,   in    conformity    with    established    practice,   her 
Majesty's  government  consider  that  it  would  be  better 
to  postpone  the  issue  and  promulgation  of  the  revised 


li 


i  n- 


82        PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


Australia. 


and  permanent  letters-patent,  commission,  and  instruc- 
tions until  '.  new  appointment  to  the  office  of  governor- 
general  of  Canada  shall  be  made.*^ 
New  in-  Meanwhile,  the  intentions  of  her  Majesty's  crovern- 

.strunicnts  o        ^        o 

for  South  ment,  as  hereinbefore  explained,  to  make  permanent 
provision  for  the  discharge  of  the  office  of  governor, 
in  the  various  dependencies  of  the  British  Crown,  were 
being  carried  out,  in  other  parts  of  the  empire. 

In  April,  1877,  upon  the  appointment  of  Sir  W.  F.  D. 
Jervois  to  be  governor  and  commander-in-chief  of 
South  Australia,  the  imperial  government  took  occa- 
sion to  revise  the  customary  form  of  the  governor's 
commission,  and  of  the  royal  instructions  accompany- 
ing the  same.  Letters-patent  were  issued,  under  the 
great  seal  of  the  United  Kingdom,  and  by  warrant 
under  the  queen's  sign-manual,  constituting  the  office 
of  governor  and  commander-in-chief  in  and  for  this 
colony.  This  instrument  was  accompanied  by  a  draft 
of  instructions  passed  under  the  royal  sign-manual 
and  signet,  to  the  governor  for  the  tim.e  being  of 
South  Australia,  or,  in  his  absence,  to  the  lieutenant- 
governor,  or  officer  administering  the  government  of 
the  said  colony.  By  these  official  documents,  perma- 
nent provision  was  made  for  the  execution  of  the  office 
of  governor  in  South  Australia,  and  the  commission 
afterwards  issued,  nominating  Sir  W.  F.  D.  Jervois  to 
fill  this  post,  merely  recites  the  letters-patent,  and 
appoints  him,  during  the  royal  pleasure,  to  be  governor 
in  and  over  the  colony,  "  with  all  and  singular  the 
powers  and  authorities  granted  to  the  governor  of  our 
said  colony,  in  our  letters-patent "  aforementioned ;  and 
authorizes  him  to  exercise  and  perform  the  same, 
*'  according  to  such  orders  and  instructions  as  our  said 
governor  for  the  time  being  hath  already,  or  may  here- 


^  For  this  correspondence,  see  Canada  Sess.  Tapers,  1879,  no.  181. 


IMPERIAL  CONTROL  OVER  COLONIAL  GOVERNORS. 


83 


after  receive  from  us."  The  commission  hus  con- 
cludes :  "  and  we  do  hereby  command  all  and  singular 
our  officers,  ministers,  and  loving  subjects  in  our  said 
colony  and  its  dependencies,  and  all  others  whom  it 
may  concern,  to  take  due  notice  hereof,  and  to  give 
their  ready  obedience  accordingly."* 

The  instructions,  accompanying  the  South  Austra- 
lian letters-patent,  and  intended  to  be  of  general  appli- 
cation to  future  incumbents  of  the  office  of  governor 
in  that  colony,  are  in  the  main  an  embodiment  of  the 
instructions  heretofore  issued  for  the  guidance  of 
governors  in  and  over  all  colonies  in  the  enjoyment 
of  local  self-government.  They  express  the  mind  and 
will  of  the  imperial  government,  in  regard  to  the 
proper  duties  of  a  governor  and  his  relation  to  his 
ministers,  as  the  same  have  been  authoritatively 
declared  in  similar  instruments,  issued  since  the  intro- 
duction of  responsible  government  into  our  colonial 
system. 

But  these  instructions  are  necessarily  more  restric- 
tive in  their  character  than  those  which  were  after- 
wards framed  in  reference  to  Canada.  Mr.  Blake's 
contention,  "  that  there  is  no  dependency  of  the  British 
Crown  which  is  entitled  to  so  full  an  application  of  the 
principles  of  constitutional  freedom  as  the  Dominion  of 


*  For  the  revised  letters-patent, 
instructions,  and  new  commission, 
see  South  Australia  Pari.  Proc. 
1877,  no.  109.  Similar  letters- 
patent,  constituting  the  office  of 
governor  and  commander-in-chief 
of  the  colony  of  the  Cape  of  Good 
Hope,  together  with  instructions 
to  the  said  governor,  were  issued 
under  the  royal  sign-manual  and 
signet,  on  Feb.  26,  1877;  and  on 
the  following  day  a  royal  commis- 
sion was  issued  appointing  Sir  II. 
Bartle  Frere  to  be  the  governor  of 
the  said  colony.      (Capo  of  Good 


Hope  Assembly  Votes,  1878,  An- 
nexures  A.  8.)  Similar  letters-pa- 
tent, making  permanent  provision 
for  the  office  of  governor  and  com- 
mander-in-chief in  and  over  the  co- 
lony of  New  Zealand  and  its  depen- 
dencies, were  issued  on  Feb.  21, 
1879,  and  the  following  day  a  com- 
mission passed  under  the  royal  sign- 
manual  and  signet  appointing  Sir 
Hercules  Robinson  governor  of  the 
colony,  in  succession  to  the  Marquis 
of  Norm.'iiiby.  (New  Zealand  Pari. 
Papers,  1879.) 


1  Hi 


Commis- 
sion and 
instruc- 
tions to 
the  Mar- 
quis of 
Lome. 


84       rAIlLL\MEXTARY  GOVERNMENT  IN  THE  COLONIES. 

Canada,"  was  admitted  to  be  correct  by  her  Majesty's 
government ;  and  the  official  instruments  made  use  of, 
in  the  appointment,  on  tlie  7th  October,  1878,  of  the 
Marquis  of  Lome  to  be  governor-general  of  Canada, 
clearly  indicate,  in  their  substantial  omissions,  as  well 
as  in  their  positive  directions,  the  larger  measure  of 
self-government  thenceforth  conceded  to  the  new  do- 
minion. This  increase  of  power,  to  be  exercised  by 
the  government  and  parliament  of  Canada,  was  not 
merely  relatively  greater  than  that  now  enjoyed  by 
other  colonies  of  the  empire,  but  absolutely  more  than 
had  been  previously  intrusted  to  Canada  itself,  during 
the  administration  of  any  former  governor-general. 

This  will  be  obvious,  upon  a  perusal  of  the  corre- 
spondence between  Lord  Dufferin  and  the  secretary  of 
state,  from  April  6,  1876,  to  Jan.  10,  1878,  above 
referred  to,  together  with  the  report  submitted  by  Mr. 
Blake  to  the  governor-general  in  council,  on  the  same 
subject,  on  Sept.  5,  1876.^ 

A  brief  mention  of  the  chief  points  of  difference 
between  the  commission  and  instructions  issued  to  the 
Marquis  of  Lome,  and  those  furnished  to  his  predeces- 
sors in  the  office  of  governor-general,  will  suffice  to 
es^  "  'ish  this  proposition. 

In  his  suggestions  for  the  revision  and  improvement 
of  these  authoritative  documents,  Mr.  Blake  had  dwelt 
at  considerable  length  upon  the  necessity  of  modifying 
the  royal  instructions  in  regard  to  the  exercise  of  the 
prerogative  of  mercy.  This  subject,  however,  will 
specially  call  for  consideration  in  a  subsequent  part 
of  this  treatise  ;  suffice  it  here  to  say  that  Mr.  Blake's 
arguments  for  a  change  of  constitutional  practice,  in 
this  particular,  substantially  prevailed,^  and  are  em- 
bodied in  the  new  instructions. 


'  Canada  Sess.  Papers,  1877,  no.  13  ;  Ibid.  1879,  no.  181. 


f 


I 


1 


ES. 

ijesty's 
use  of, 
of  the 
/anada, 
as  well 
lire  of 
ew  do- 
sed by 
'^as  not 
^^ed  by 
re  than 
during 
•al. 

corre- 
tary  of 

above 
by  Mr. 
e  same 

ferenee 

to  the 

edeces- 

fice  to 

/ement 
I  dwelt 
difying 
of  the 
sr,  will 
it  part 
Blake's 
tice,  in 
L'e   em- 


IMPEIIIAL  CONTROL  OVER  COLONIAL  GOVERNORS. 


85 


f 


i 


i 
1 


Other   portions  of  the    governor's   commission   and  A'*^'".'^- , 

...  .         ,  tionsmthe 

instructions,  heretofore  invariably  inserted  in  docu-  revisid 
ments  of  this  description  were  omitted  from  the  revised  rks""  * 
draft  agreed  upon  for  use  in  Canada,  on  the  ground 
that  they  were  obsolete  or  superfluous  and  unnecessary. 
Of  this  character  we  may  refer  to  the  directions  con- 
cerning the  meetings  of  the  executive,  or  privy  coun- 
cil, and  the  transaction  of  business  by  that  body ;  the 
clause  which  authorized  the  governor,  in  certain  con- 
tingencies, to  act  in  opposition  to  the  advice  of  his 
ministers ;  the  clause  which  prescribes  the  classes  of  bills 
to  be  reserved  by  the  governor-general  for  imperial 
consideration ;  and  certain  clauses  dealing  with  matters 
which  now  come  within  the  purview  of  the  provincial 
governments,  and  are  dealt  with  by  local  legislation, 
over  which  the  governor-general  and  his  advisers 
practically  exercise  no  control. 

All  such  questions,  it  was  wisely  contended  by  Mr. 
Blake,  should  be  left  to  be  determined  by  the  applica- 
tion to  them,  as  they  might  arise,  of  the  constitutional 
principles  involved  in  the  establishment  in  Canada  of 
parliamentary  government.  The  authority  of  the 
Crown  in  every  colony  is  suitably  and  undeniably 
vested  in  the  governor.  He  possesses  "  the  full  con- 
stitutional powers  which  her  Majesty,  if  she  were  rul- 
ing personally  instead  of  through  his  agency,  could 
exercise."  "The  governor-general  has  an  undoubted 
right  to  refuse  compliance  with  the  advice  of  his  minis- 
ters; whereupon  the  latter  must  either  adopt  and 
become  responsible  for  his  views,  or  leave  their  places 
to  be  filled  by  others  prepared  to  take  that  course." 

Even  in  respect  to  questions  which  may  involve 
imperial  as  distinct  from  Canadian  interests,  it  appeared 
to  Mr.  Blake  unadvisable,  if  not  impossible,  to  formulate 
any  rule  of  limitation  for  the  conduct  of  the  governor- 
general.     "  The   truth  is,"  he  observes,  "  that  imperial 


<i    ■! 


I/' 


I 


86       PARLIAMENTARY  GOVEFNMENT  IN  THE  COLONIES. 

interests  are,  under  our  present  system  of  government, 
to  be  secured  in  matters  of  Canadian  executive  policy, 
not  by  any  such  clause  in  a  governor's  instructions 
(which  would  be  practically  inoperative,  and  if  it  can 
be  supposed  to  be  operative  would  be  mischievous),  but 
by  mutual  good  feeling,  and  by  proper  consideration 
for  imperial  interests  on  the  jDart  of  her  Majesty's 
Canadian  advisers ;  the  Crown  necessarily  retaining 
all  its  constitutional  rights  and  powers,  which  would  be 
exercisable  in  any  emergency  in  which  the  indicated 
securities  might  be  found  to  fail."  He  therefore  sug- 
gested the  omission  of  all  clauses,  in  the  royal  instruc- 
tions to  governors  of  Canada,  which  were  of  this  nature. 
The  sections  of  the  British  North  America  Act,  defining 
and  regulating  the  exercise  of  the  powers  which  apper- 
tain to  the  office  of  governor-general  in  a  system  of 
government  expressly  declared  by  that  statute  to  be 
"similar  in  principle  to  th«>t  of  the  United  Kingdom," 
were  in  Mr.  Blake's  judgment  amply  sufficient  to 
determine  the  constitutional  status  and  authority  of 
that  officer ;  subject,  of  course, "  to  any  further  instruc- 
tions, special  or  general,  which  the  Crown  may  law- 
fully give,  should  circumstances  render  that  course 
desirable."  ^ 

These  propositions,  advanced  by  Mr.  Blake,  were  for 
the  most  part  accepted  and  approved  by  her  Majesty's 
government,  and  led,  as  we  have  seen,  to  the  introduc- 
tion of  material  alterations  in  the  form  and  substance 
of  the  commission  and  instructions  to  colonial  governors, 
particularly  in  reference  to  the  dominion  of  Canada. 

But  while  the  revised  and  amended  formularies, 
since  promulgated  for  the  regulation  of  the  office  of 
governor  in  Canada,  in  South  Australia,  and  in  other 
colonies,  have  been  framed  more  in  accordance  with 


K  Canada  Sess.  Papers,  1877,  no.  13,  p.  8. 


i 


I 

' 


1 


I 


I 


i 


IMPERIAL  CONTROL  OVER  COLONIAL  GOVERNORS. 


87 


the  actual  political  relation  of  these  several  colonies  to 
the  mother  country,  it  is  important  to  observe  that 
they  do  not  abate  or  relinquish  one  iota  of  the  right- 
ful supremacy  of  the  Crown,  as  the  same  may  be  consti- 
tutionally exercised  in  any  part  of  the  queen's  domi- 
nions, upon  the  advice  of  responsible  ministers.'' 

Any  further  comment  that  may  be  necessary,  in  re- 
gard to  the  changes  effected  by  the  new  drafts  of  these 
authoritative  instruments,  may  be  suitably  reserved  for 
consideration  in  connection  with  the  special  points  in 
question,  to  be  hereafter  examined. 

We  will  now  briefly  indicate  the  contents  of  the 
letters-patent  constituting  the  office  of  the  governor- 
general  of  Canada,  of  the  royal  instructions  accompany- 
ing the  same,  and  of  the  commission  appointing  the 
Marquis  of  Lome  to  fill  this  office ;  as  the  same  were 
transmitted  to  the  Senate  and  Commons  of  Canada,  on 
Feb.  19,   1879.^ 

By  his  letters-patent,  the  governor-general  of  the 
dominion  of  Canada,  for  the  time  being,  is  authorized 
and  commanded  by  the  queen,  "  to  do  and  execute,  in 
due  manner,  all  things  that  shall  belong  to  his  said 
command,  and  to  the  trust  we  have  reposed  in  him, 
according  to  the  several  powers  and  authorities  granted 
or  appointed  him  by  virtue  of  ^The  British  North 
America  Act,  1867,'  and  of  these  present  letters-patent, 
and  of  such  commission  as  may  be  issued  to  him  under 
our  sign-manual  and  signet,  and  according  to  such 
instructions  as  may,  from  time  to  time,  be  given  to  him, 
under  our  sign-manual  and  signet,  or  by  our  order  in 
our  privy  council,  or  by  us  through  one  of  our  princi- 
pal secretaries  of  state  ;  ana  to  such  laws  as  are  or  shall 
hereafter  be  in  force  in  our  said  dominion." 


Revised 
formula- 
ries main- 
tain supre- 
macy of 
the  Crown. 


Power  of 
governor- 
general  of 
Canada. 


^  Sir  M.  Hicks-Beach  (colonial  secretary)  in  Hans.  Deb.  vol.  ccxliv. 
p.  1312.  ""' 

'   Canada  Sess.  Papers,  1879,  no.  14. 


,-• 


■nHBi 


88       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

He  is  also  authorized  and  empowered  to  keep  and 
use  tho  great  seal  of  Canada,  "for  sealing  all  things 
whatsoever  that  shall  pass  the  said  great  seal." 

And  to  constitute  and  appoint,  in  the  name  and 
behalf  of  the  sovereign,  "  all  such  judges,  commission- 
ers, justices  of  the  peace,  and  other  necessary  officers 
and  ministers  of  our  said  dominion,  as  may  be  lawfully 
constituted  or  appointed  by  us." 

And  "upon  sufficient  cause  to  him  appearing,"  to 
remove  or  suspend  from  office  any  person  holding  any 
office  under  the  Grower  in  Canada,  so  far  as  the  same 
may  lawfully  be  done. 

And  "  to  exercise  all  powers  lawfully  belonging  to 
us  in  respect  of  the  summoning,  proroguing,  or  dissolv- 
ing the  parliament "  of  Canada. 

And  under  the  authority  of  the  British  North  Ame- 
rica Act,  aforesaid,  to  appoint  any  person  or  persons, 
jointly  or  severally,  to  be  his  deputy  or  deputies  within 
any  part  of  Canada,  to  exercise  such  of  the  powers  or 
functions  of  the  governor-general,  as  he  may  please  to 
assign  to  him  or  them. 

And  "  in  the  event  of  the  death,  incapacity,  removal 
or  absence "  out  of  Canada  of  the  governor-general, 
all  his  powers  shall  be  vested  in  a  lieutenant-governor, 
or  administrator,  to  be  ajipointed  by  the  queen,  under 
her  sign-manual  and  signet,  or  if  none  such  have  been 
appointed,  "  then  in  the  senior  officer  for  the  time  being 
in  command  of  our  regular  troops"  in  Canada;  after 
such  person  shall  have  duly  taken  the  oaths  prescribed 
to  be  taken  by  the  governor-general. 

"All  our  officers  and  ministers,  civd  and  military, 
and  all  other  the  inhabitants  of  our  said  dominion,"  are 
required  "  to  be  obedient,  aiding  and  assisting  unto  our 
said  governor-general,"  or  the  administrator,  &c.,  in  his 
absence. 

By  the  last  clauses  of  the  letters-patent,  full  power  is 


f  i 


II ! 

I!'' !'; 


»> 


to 


?  any 
same 


IMPERLVL  CONTROL  OVER  COLONIAL  GOVERNORS.    89 

reserved  to  revoke,  alter,  or  amend  the  same,  at  any 
time ;  and  provision  made  to  ensure  that  they  shall 
have  due  pulacity  in  Canada. 

The  royal  instructions  for  the  execution  of  the  office 
of  governor-general  of  Canada  begin  by  reciting  the 
letters-patent,  aforesaid,  and  enjoin  the  governor-ge- 
neral for  the  time  being,  to  cause  his  commission  to  be 
read  and  published  in  the  presence  of  the  chief-justice 
or  other  judge  of  the  supreme  court,  and  of  the  mem- 
bers of  the  dominion  privy  council,  and  require  him  to 
be  duly  sworn  upon  entering  upon  the  duties  of  his 
office. 

They  also  require  him  to  administer,  or  cause  to  be 
administered,  the  necessary  oaths  to  all  persons  who 
shall  hold  any  office  or  place  of  trust  in  the  dominion. 

To  communicate  these  and  any  other  instructions  he 
may  receive  to  the  dominion  privy  council. 

To  transmit  to  the  imperial  government  copies  of  all 
laws  assented  to  by  him  in  the  queen's  name,  or  re- 
served for  the  signification  of  the  royal  pleasure ;  with 
suitable  explanatory  observations  and  copies  of  the  jour- 
nals and  proceedings  of  the  parliamont  of  the  dominion. 

The  only  other  clauses  contained  in  these  instruc- 
tions concern  the  exercise  by  the  g*^  rnor-general,  of 
the  prerogative  of  pardon,  —  which  ,^  .t  as  been  already 
remarked)  will  receive  due  consideration  in  an  appro- 
priate part  of  this  treatise,  —  and  forbid  his  quitting  the 
dominion,  "without  having  first  obtained  leave  from 
us  for  so  doing,  under  our  sign-manual  and  signet,  or 
through  one  of  our  principal  secretaries  of  state." 

The  royal  commission  appointing  the  Marquis  of 
Lome  to  be  governor-general  of  the  dominion  of  Ca- 
nada, is  dated  Oct.  7,  1878.  It  simply  recites  the  let- 
ters-patent aforesaid,  and  confers  upon  Lord  Lome  this 
office,  with  the  powers  and  authorities  belonging  to  it, 
according   to   such   orders    and   instructions   as  have 


General 
instruc- 
tions to 
ffovernor- 
{reneral  of 
Cauada. 


Commis- 
sion ap- 
pointing 
governor- 
general. 


n 


!' 


It 


Special  In- 
structions 
to  gover- 
nors. 


Tlicir 
term  of 
service. 


90       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

already  been,  or  may  hereafter  be,  communicated  to 
him  from  the  sovereign ;  and  commands  "  all  and  sin- 
gular our  ofhcers,  ministers,  and  loving  subjects  in  our 
said  dominion,  and  all  others  whom  it  may  concern,  to 
take  due  notice  hereof,  and  to  give  their  ready  obedi- 
ence accordingly." 

Every  colonial  governor,  after  his  appointment  to 
office,  is  subject  to  the  control  of  the  Crown,  as  an  im- 
perial officer.  In  addition  to  the  permanent  and  ge- 
neral instructions  which  he  receives  in  connection  with 
his  commission,  he  may,  from  time  to  time,  be  charged 
with  any  further  instructions,  special  or  general,  which 
the  Crown  may  lawfully  communicate  to  him,  under 
particular  circumstances.  The  medium  of  communica- 
tion between  the  sovereign  and  her  representative,  in 
any  British  colony,  is  the  secretary  of  state. 

Colonial  governors  invariably  hold  office  during  the 
pleasure  of  the  Crown ;  but  their  period  of  service  in  a 
colony  is  usually  limited  to  six  years,  from  the  assump- 
tion of  their  duties  therein  jj  although,  at  the  discretion 
of  the  Crown,  a  governor  may  be  re-appointed  for  a 
further  term. 

The  rule  which  limits  the  term  of  service  of  a  go- 
vernor to  six  years  was  established  principally  for  the 
purpose  of  ensuring  in  governors  the  utmost  impar- 
tiality of  conduct,  by  disconnecting  them  from  fixed  re- 
lations with  the  colony  over  which  they  are  appointed 
to  preside.  It  was  first  made  applicable  to  all  British 
colonies  by  a  circular  despatch  from  Mr.  Secretary 
Huskisson,  issued  in  May.  1828,  as  follows :  "It  shall  for 
the  future  be  understood  that,  at  the  expiration  of  six 
years,  a  governor  of  a  colony  shall,  as  a  matter  of  course, 
retire  from  his  government,  unless  there  should  be 
some  special  reasons  for  retaining  him  there  j  and  that 


i  Col.  Reg.  1879,  sec.  7. 


the 
otl| 


IMrEIlIAL  CONTROL  OVER  COLONIAL  GOVERNORS. 


91 


with 


the  way  shoukl  thus  be  opened  for  the  employ irient  of 
Others,  who  may  have  chiims  to  the  notice  of  his  Majes- 
ty's government."  ^ 

During  the  temporary  a])sence  of  a  governor  from 
his  colony,  it  was  formerly  the  general  practice  for  tlie 
Crown,  by  a  dormant  commission  under  the  sign- 
manual,  to  empower  the  chief-justice  or  senior  judge 
therein  to  act  as  administrator  of  the  government. 
But  difficulties  having  sometimes  arisen  in  carrying 
out  an  arrangement  of  this  kind,  it  is  not  now  invariably 
resorted  to,  at  least,  in  the  first  instance.  Instead  of 
this  provision  to  supply  the  place  of  an  absent  gover- 
nor, it  is  now  customary  cither  to  appoint  a  lieute- 
nant-governor, or  administrator  of  the  government, 
under  the  royal  sign-manual ;  or  else  that  the  senior 
otHcer  for  the  time  being  of  her  Majesty's  regular 
troops  in  the  colony  shall  be  empowered  to  act  in  this 
capacity.  But  where  no  such  provision  has  been  made, 
it  is  usual  and  appropriate  for  the  chief-justice  or  senior 
judge  to  be  authorized  to  act  as  administrator  of  the 
government,  in  the  event  of  the  death,  incapacity, 
removal  or  departure  from  the  government  of  the  go- 
vernor and  (if  there  be  such  an  officer)  of  the  lieute- 
nant-governor of  the  colony.' 

In  matters  of  imperial  concern,  or  which  may  affect 
the  well-being  of  the  colony  as  a  part  of  the  empire, 
it  is  the  duty  of  the  secretary  of  state,  as  the  constitu- 
tional mouthpiece  of  the  sovereign,  to  correspond  with 
colonial  governors,  —  communicating  the  opinions  of 
her  Majesty's  government,  and  making  whatever  re- 


Provision 
for  iil)- 
st'iK't-  of  a 
governor. 


Commu- 
nications 
to  a  go- 
vernor 
from  im- 
perial go- 
vernment. 


fc. 


f 


i 


^  Commons  Papers,   1836,  vol.  spondence    in    New   South    Wales 

xxxix.  p.   633.     Todd,  vol.    ii.    p.  Votes  and  Proc.  1874,  pp.  95-108. 

524.  Unci.  1875-76,  vol.  ii.  p.  19.    South 

'   Col.  Reg.  1879,  sees.  6  and  7:  Australia  Pari.  Proc.  1875,  vol.  iii. 

the  Marquis  of  Lome's  letters- pa-  no.  35.    Ibid.  1877,  p.  1,  and  appx. 

tent,  as  governor-general  of  Cana-  nos.  48  aud  109. 
da,  in  1878.     See  also  the  corre- 


l»  ''>. 


*f^\*k 


Conveyed 
by  the 
secretary 
of  state. 


92       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES, 

commendations  or  suggestions  he  may  deem  to  be 
expedient,  either  for  the  instruction  of  the  governor, 
for  the  information  of  his  ministers,  or  for  the  welfare 
of  the  colonial  subjects  of  the  Crown.  Opportunities 
for  such  advice  or  interposition  w^ill  naturally  become 
less  frequent  and  imperative,  in  proportion  as  the  insti- 
tutions of  government  in  any  colony  become  settled 
and  in  harmonious  operation.  In  matters  of  local  con- 
cern, within  the  legitimate  jurisdiction  of  a  self-govern- 
ing community,  the  opi^iion  of  the  imperial  government 
is  seldom  obtruded,  and  never  xxioisted  upon.  And  in 
well-established  colonies,  in  possession  of  the  full  mea- 
sure of  local  responsibility,  despatches  from  her  Majes- 
ty's colonial  secretary,  in  reply  to  communications  from 
the  governor,  narrating  the  progress  of  events  under 
his  administration,  are  usually  confined  to  a  brief  ac- 
knowledgment of  the  receipt  of  such  intelligence,  and 
to  the  expression  in  general  terms  of  the  opinion  enter- 
tained by  her  Majesty's  government  of  the  governor's 
proceedings. 

It  is  likewise  ircumbent  upon  the  secretary  of  state 
to  be  the  medium  of  conveying  to  all  governors  of  colo- 
nies and  other  dependencies  of  the  Crown  specific  in- 
structions for  their  guidance  in  the  fulfilment  of  their 
respective  charges.  These  instructions  are  issued  by 
the  sovereign,  under  tlie  royal  sign-manual.  They  are, 
as  has  been  already  observed,  primarily  of  a  general 
nature,  and  are  addressed  to  the  governor,  upon  his 
first  assumption  of  office.'"  Subsequent  instructions  are 
transmitted  to  the  governor,  from  time  to  time,  as  may 


>"  Soe  the  royal  instructions  to 
the  Duke  of  Richmond,  upon  his 
appointment,  in  1818,  to  be  jyover- 
nor-in-cliief  in  and  over  Upper  and 
Lower  Canada.  (Commons  Papers, 
1837-38,  vol.  xxxix.  p.  794.) 
Royal  Instructions  to  the  Earl  of 


Dufferin,  as  governor-general  of  the 
Dominion  of  Canada,  dated  May  22, 

1872.  (Canada    Com.    Journals, 

1873,  p.  8.").)  Royal  Instructions 
to  the  governor  of  South  Australia, 
dated  April  28,  1877.  (South  Au- 
stralia Pari.  Proc.  1877,  no.  lOU) 


b 
W 


o 
ai 


li'Mi 


IMPERLVL  CONTROL  OVER  COLONIAL  GOVERNORS.        93 


may 


be  necessary ;  or  are  embodied  in  "  circular  despatches," 
which  are  addressed  iu  governors  generally,  although 
sent  to  each  one  individually." 

Ample  directions  in  regard  to  the  order  and  method 
of  correspondence  between,  the  governor'  of  a  colony 
and  the  colonial  office  will  be  found  in  chapter  VII.  of 
the  "  Rules  and  Regulatir  s  for  her  Majesty's  Colonial 
Service,"  issued  in  1879. 

By  the  royal  instructions,  governors  are  forbidden  to 
give  to  any  person  copies  of  despatches  they  may  re- 
ceive from  the  secretary  of  state^  —  or  to  allow  copies 
to  be  taken  of  them,  —  unless  under  a  general  or  spe- 
cial authority  from  that  officer.  But  where  responsible 
government  is  established,  the  governor  is  considered  to 
be  at  liberty  to  communicate  to  his  advisers  all  de- 
spatches not  marked  "  Confidential."  And  by  a  circu- 
lar, dated  July  10,  1871,  despatches  are  reclassified,  as 
follows:  (1.)  Numbered  despatches,  w'hich  a  governor 
may  publish,  unless  directed  not  to  do  so.  (2.)  Secret y 
which  he  may,  if  he  thinks  fit,  communicate,  under  the 
obligation  of  secrecy,  to  his  ministers,  and  may  even 
make  public,  if  he  thinks  it  necessary.  (3.)  Confidential, 
which  are  addressed  to  a  governor  personally,  and 
which  he  is  forbidden  to  make  known,  without  express 
authority  from  the  secretary  of  state." 

In  laying  despatches  and  other  papers  before  the 
legislature,  the  governor  of  a  colony  is  bound  by  con- 
stitutional practice.  In  general,  the  governor  in  colo- 
nies with  responsible  ministries  takes  no  personal  action, 
in  this  matter,  in  the  case  of  "numbered"  despatches 


^ 


Official  de- 
spatches. 


Presenta- 
tion of  de- 
spatchea 
to  local 
parlia- 
ment. 


1 


"  For  example  see  the  "  circular 
despatch,"  of  June  28,  1843,  in  re- 
gard to  the  imposition  of  differen- 
tial duties  by  colonial  legislatures; 
and  that  on  martial  law,  which  was 
laid  before  Parliament  in  1867;  and 
that  on  the  exercise  of  the  preroga- 


tive of  mercy,  presented  to  Parlia- 
ment in  1877.  See  also  the  circu- 
lar despatch  of  March  8,  ?870,  on 
the  transmission  of  despatches,  iu 
Col.  Reg.  1879,  sec.  177. 
0  Col.  Reg.  1879,  sec.  188. 


94        PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


Ministeri- 
al respon- 
sibility. 


and  ordinary  papers,  and  is  rarely  even  consulted.  The 
ministers  lay  before  the  legislature  any  such  documents, 
on  their  own  discretion  and  responsibility.''  But  it  is  a 
general  and  reasonable  rule  of  the  public  service  that 
despatches  and  other  docunjents  forwarded  to  the  im- 
perial government  should  not  be  published  until  they 
shall  have  been  received  and  acknowledged  by  the 
secretary  of  state ;  and  that  no  confidential  memoran- 
dums passing  between  ministers  and  the  governor 
should  be  laid  before  the  colonial  parliament,  except 
on  the  advice  of  the  ministers  concerned.*^ 

When  advised  to  do  so  by  his  ministers,  the  governor 
should  lay  "  any  numbered  and  not  confidential  de- 
spatch "  addressed  by  him  to  or  received  by  him  from 
the  secretary  of  state  before  the  local  Parliament ;  un- 
less there  be  some  strong  reason  to  the  contrary, — 
such  as  a  pending  reference  to  the  secretary  of  state. *" 

But  the  governor  must  first  be  advised  by  his  mi- 
nisters before  taking  such  a  step ;  and  they  must  be 
prepared  to  defend  his  action  if  it  be  impugned. 

Ministers  cannot  relieve  themselves  from  the  respon- 
sibility of  advising  as  executive  councillors ;  nor  is  a 
governor  free  to  act  without  or  against  ministerial  advice, 
in  cases  not  involving  the  rights  or  prerogatives  of  the 
Crown  or  imperial  interests :  though  such  responsi- 
bility on  the  part  of  ministers  does  not  oblige  them 
to  defend  particular  views  or  statements  contained  in 
a  governor's  despatches  or  confidential  memorandums.^ 


P  New  Zealand  House  of  Rep. 
Journals,  1871,  appx.  vol.  i.  p.  14. 
New  Zealand  Pari.  l)eb.  vol.  viii.  p. 
140. 

1  Governor  Bowen's  answer  to 
an  address  of  Leg.  Council  of  Vic- 
toria, dated  Jan.  24,  1878;  Com- 
mons Papers,  1878,  C.  2173,  pp.  8, 
54,  03.  And  see  Todd,  Pari.  (iovt. 
vol.  i.  pp.  279,  003;  and  Lord  E\- 
lenborough's  case,  ibid.  vol.  ii.  p.  383. 


'  Colonial  secretary  (Lord  Car- 
narvon's) despatch,  .Jan.  20,  1878; 
Tasmania  Leg.  Council  Journals, 
1878,  appx.  no.  30,  p.  11. 

'  Governor  Weld,  Memo,  for  his 
ministers,  of  Oct.  29,  1877.  Tas- 
mania Leg.  Council  Journals,  1877, 
Sess.  4,  appx.  no.  3o,  p.  0  ;  ap- 
proved by  Lord  Carnarvon,  in  de- 
.spatch  of  Jan.  20,  1878.  Thus,  on 
Feb.  10,  1879,  the  governor  of  Tas- 


un- 


ion- 
is  a 
vice, 
the 
|)onsi- 
lem 
I  in 


Car- 

1878; 
rnals, 


IMPERIAL  CONTROL  OVER  COLONIAL  GOVERNORS. 


95 


It  rests  with  the  secretary  of  state  in  every  instance,  Confidon- 
to  decide  whether  "  confidential "  despatches  may  or  gpatches. 
may  not  be  made  public* 

Sir  E.  Bulwer-Lytton,  when  colonial  secretary,  in 
notifying  Sir  George  Bowen  of  his  appointment  as  the 
first  governor  of  Queensland,  gave  the  following  sum- 
mary of  the  foregoing  rules:  "The  communications 
from  a  govciument  should  be  fourfold:  (1.)  Public  de- 
spatches. (2.)  Confidential — intended  for  publication,  if 
at  all  required.  (3.)  Confidential — not  to  be  published 
unless  ahsolidclf/  necessari/  for  defence  of  measures  hj  your- 
self and  the  Jiome  department.  (4.)  Letters  strictly  private ; 
and  these,  if  frank  to  a  minister  or  to  an  under-secre- 
tary  like  Mr.  Merivale,  should  be  guarded  to  friends ; 
and  touch  as  little  as  possible  upon  names  and  parties 
in  the  colony.  A  government  may  rely  on  the  discre- 
tion of  a  department,  never  on  that  of  private  corre- 
spondents." " 

On  May  16,  1867,  a  motion  was  made  in  the  Legislative 


IS,  on 
Tas- 


mania, having  requested  that  cer- 
tain numbered  despatches  received 
by  him  from  the  secretary  of  state 
might  be  immediately  laid  before 
the  colonial  parliament,  was  in- 
formed by  his  ministers  "  that  they 
are  unable  to  discover  any  grounds 
of  public  policy  requiring  the  pub- 
lication of  these  despatches,  and 
after  due  consideration  are  unani- 
mously of  opinion  that  it  is  unde- 
sirable to  accede  to  his  Excellency's 
request."  (Tasmania  Leg.  Council 
Papers,  1878-79,  no.  114.)  Upon 
this  occasion,  the  views  of  his  Ex- 
cellency the  governor,  upon  the 
particular  question,  were  in  accord 
with  his  ministers;  though,  for  the 
Bake  of  avoiding  further  unnecessary 
discussion  of  a  controverted  case,  he 
objected  to  lay  the  despatches  before 
parliament.  Subsequently,  however, 
the  Legislative  Council  having  spe- 
cially .applied  for  the  production  of 
all  the  papers  in  the  case,  ministers 


advised  their  publication.  In  con- 
curring with  this  request,  "  the  go- 
vernor points  out  to  ministers,  as 
lie  did  to  their  predecessors,  that, 
whatever  may  be  his  personal  views, 
he  (in  matters  not  involving  impe- 
rial interests,  or  the  prerogatives  of 
the  Crown,  directly  or  indirectly) 
considers  his  responsible  advisers  to 
be  answerable  to  parliament  for  ad- 
vising the  production  of  despatches, 
and  for  the  policy  of  such  produc- 
tion, but  does  not  consider  that 
such  responsibility  renders  it  in- 
cumbent on  them  to  defend  any 
view  or  statement  therein  expressed 
by  the  governor."  {lUd.  Leg.  Coun- 
cil Papers,  1878,  no.  117.) 
«  Col.  Keg.  1878,  no.  18L 
"  Lord  Lytton's  Speeches,  &c., 
vol.  i.  p.  cxxiii.  See  further,  in  re- 
gard to  private  correspondence  lie- 
tween  public  functionai'ies,  Todd, 
Pari.  Govt.  vol.  ii.  p.  5U0. 


I 


96        PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


When 
communi- 
cated to 
parlia- 
ment. 


i   ' 


Governor 
Robin- 
son's con- 
fidential 
minute  to 
ministers. 


Assembly  of  Queensland  for  an  address  to  the  governor  ask- 
ing for  a  copy  of  his  despatch  to  the  secretary  of  state  for  the 
colonies,  transmitting  a  petition  from  certain  residents  in  the 
colony  requesting  the  governor's  recall,  —  in  consequence  of 
his  interposition  to  prevent  certain  proceedings  on  the  part 
of  his  ministers  which  were  at  variance  with  the  i  oyal  in- 
structions, and  which  interposition  led  to  the  resignation  of 
ministers,  —  and  also  for  a  copy  of  the  reply  to  this  despatch. 
Whereupon  the  premier  pointed  out  that,  by  the  royal  instruc- 
tions, all  governors  are  prohibited  from  giving  copies  of  their 
despatches,  unless  with  th-^  sanction  of  the  secretary  of  state. 
The  despatches  in  question  were  "  confidential,'*  and  had  not 
even  been  perused  by  the  premier.  Nevertheless,  he  assumed 
the  responsibility  of  advising  the  governor  that,  in  his  opi- 
nion, it  was  unnecessary  to  produce  them.  The  motion  was 
accordingly  negatived  on  a  division .^ 

On  Aug.  19,  1873,  Governor  Fergusson  of  New  Zealand, 
transmitted  a  message  to  the  Legislative  Council  of  the  co- 
lony, declining  to  lay  before  that  body  "  all  correspondence  " 
which  had  passed  betveen  himself  and  the  secretary  of  state, 
on  a  particular  question,  as  such  a  proceeding  would  establish 
a  practice  hitherto  unprecedented. w 

On  Nov.  25,  1874,  a  motion  was  made  in  the  Legislative 
Assembly  of  New  South  Wales,  condemnatory  of  the  conduct 
of  ministers  in  laying  before  the  house  Governor  Robinson's 
minute,  to  themselves,  upon  the  exercise  of  the  prerogative  of 
mercy  in  a  certain  case,  and  also  reflecting  upon  the  tenor 
of  the  minute  itself,  —  which,  it  was  alleged,  contained  an 
implied  censure  upon  the  Legislative  Assembly.  This  motion 
was  negatived  by  the  casting-vote  of  the  speaker.*  Shortly 
after  parliament  was  dissolved.  The  new  parliament  was 
convened  in  January,  1875.  In  the  debate  upon  the  address 
in  answer  to  the  speecli  from  the  throne,  an  amendment,  similar 
to  the  motion  above  mentioned,  was  carried  against  ministers. 
Whereupon  they  resigned.  In  reply  to  the  address,  the  go- 
vernor (in  the  interval  between  the  resignation  of  his  minis- 
ters and  the  appointment  of  their  successors),  transmitted 


'  1 1 


"  Queensland,  Pari.  Deb.  1867, 
p.  164. 

*  New  Zealand  Leg.  Council 
Journals,  3873,  appx.  no.  4. 


'^  New  South  Wales,  Leg.  As- 
sembly Votes  and  Proc.  1874,  p. 
54. 


r  ask- 
or  the 
in  the 
ice  of 
e  part 
ral  in- 
ion  of 
;patch. 
iistruc- 
f  their 
[  state, 
lad  not 
ssumed 
lis  opi- 
on  was 

ealand, 
the  co- 
dence  " 
)f  state, 
stablish 

I 
islative 

onduct 

jinson's 

ative  of 

tenor 

ned  an 

motion 
Shortly 

nt  was 
address 

simihir 

nisters. 

the  go- 
minis- 

smitted 


eg.  Aa- 
1874,  p. 


IMPERIAL  CONTROL  OVEll  COLONIAL  GOVERNORS.      97 

a  message  to  the  assembly,  dated  February  2,  wherein  he 
defended  his  conduct  in  this  matter,  and  asserted  the  consti- 
tutional rights  of  his  office,  whilst  expressing  due  respect  and 
consideration  for  the  opinions  of  the  Legislative  Assembly, 
and  a  readiness  to  accept  their  decision,  so  far  as  it  affected 
his  late  ministers.  Unable  to  succeed  in  the  endeavour  to 
form  a  new  administration  of  different  material,  the  governor 
was  obliged  to  send  for  Mr.  Robertson,  who,  as  leader  of  the 
opposition  in  the  Assembly  had  induced  the  house  to  agree 
to  the  aforesaid  amendment  to  the  address.  But  in  his 
memorandum  to  Mr.  Robertson,  the  governor,  —  while  admit- 
ting the  right  of  the  house  to  condemn  the  ex-ministry  for 
their  own  act,  in  laying  his  Excellency's  minute  upon  the 
table,  —  protested  against  the  rest  of  the  amendment,  as  being 
"  not  only  a  personal  imputation  upon  himself,  but  an  inva- 
sion of  the  constitutional  rights  of  his  office."  Mr.  Robert- 
son accepted  the  position  offered  to  him,  and  became  premier 
of  a  new  ministry.  The  governor  duly  reported  his  own 
proceedings  to  the  secretary  of  state  (Earl  Carnarvon),  who, 
in  a  despatch  dated  April  26,  1875,  expressed  his  approval 
of  his  Excellency's  conduct ;  including  the  terms  of  the  mes- 
sage of  the  2d  February,  when  he  was  without  constitu- 
tional advisers.  The  colonial  secretary  had  previously,  in  a 
despatch  dated  March  20,  1875,  freely  accepted  the  gover- 
nor's explanations  in  regard  to  his  minute,  above  mentioned, 
and  his  assurance  that  he  had  not  intentionally  reflected 
therein  upon  the  Legislative  Assembly .y 

During  the  continuaxice  of  the  "dead-lock"  between  the  Confiden- 
legislative  chambers  in  th'   colony  of  Victoria,  in  1877-78,  s''^.|t|!hc3 
arising  out  of  differences  in  regard  to  the  powers  of  the  two  on  Vioto- 
houses  in  the  appropriation  of  public  money,  the  governor  [oJ^,"^***' 
(Sir  G.  Bowen),  on  Jan.  31,  1878,  telegraphed  the  secretary 
of  state  (Earl  Carnarvon)  as   follows :  "  It  would  do  much 
good  if  I  might,  in  compliance  with  advice  of  ministers  and 
address  from  Legislative  Assembly,  present  to  parliament  the 
confidential  despatches  written  in  1867  and  1868  by  Lord 
Canterbury,  or   extracts   from   them,  which  bear  upon  the 
present  crisis.     Please  telegraph  your  answer."     Li    reply, 
dated  February  9,  the  colonial  secretary  expressed  his  wish 


If 


y  Commons  Papers,  1875,  vol.  liii-  pp.  682-096. 

7 


:! 


Confiden- 
tial com- 
nmnica- 
tions  be- 
tween 
ministers 
and  tlie 
governor. 


98      PARLIAMENTARY  GOVERNMENT  IN  THE  COL0:7IES. 

to  delay  deciding  on  this  application  until  he  had  received 
further  information  on  the  subject.  On  February  22,  he  sent 
a  message  lo  the  governor,  "  telegraph  your  reasons  for  de- 
siring to  publish  .  .  .  despatches  which,  being  confidential, 
I  am  disposed  to  think  had  better  be  withheld."  Accord- 
ingly, on  March  1,  Governor  Bowen  replied,  "Lord  Canter- 
bury's despatches  during  the  last  dead-lock,  specially  taose 
referred  to  in  my  confidential  despatch  of  September  28, 
define  the  position  and  mutual  relations  of  the  Council  and 
Assembly,  and  their  presentation  to  parliament  here  v^ould 
now  do  good."  Whereupon,  on  March  6,  the  colonial  secre- 
tary (Sir  M.  Hicks-Beach)  answered :  "  I  will  not  refuse  con- 
sent to  publication,  under  advice  of  ministers,  of  any  public 
despatches  on  Darling  case,  and  of  confidential  reports  men- 
tioned in  your  despatch  of  September  28,  —  except  despatch 
of  April  26,  18G8,  and  paragraph  referring  to  it  in  despatch 
of  May  23,  1868,  which  I  think  better  withheld.  But  minis- 
ters must  be  responsible  if  any  matter  so  published  gives 
offence  or  causes  difficulties."^ 

On  the  same  day,  March  6,  1878,  the  Legislative  Assembly 
of  Victoria  addressed  the  governor,  praying  him  to  present 
to  parliament  any  hitherto  unpublished  despatches  of  Lord 
Canterbury,  written  during  the  parliamentary  dead-lock  of 
1866-68.  On  March  19,  Governor  Bcwen  informed  the 
Assembly  by  message,  "  that  having  askea  and  received  per- 
mission accordingly  from  the  secretary  of  state,  he  now  trans- 
mits herewith  copies  of  the  despatches  referred  to."" 

Li  January,  1878,  the  Legislative  Council  of  Victoria  passed 
an  address  to  the  governor  (Sir  G.  Bowen)  asking  for  a  copy 
of  a  ministerial  memorandum,  upon  the  position  of  affairs 
arising  out  of  the  parliamentary  crisis  in  the  colony,  which 
had  been  communicated  by  the  premier  to  the  governor,  and 
transmitted  by  him  to  the  secretary  of  state  for  the  colonies. 
The  governor  declined  to  present  this  memorandum,  on  the 
ground  that  "  it  is  a  general  and  reasonable  rule  of  the  public 
service  tliat  documents  forwarded  to  the  imperial  government 
should  not  be  published  until  they  shall  have  been  received 


«  Commons    Papers,   1878,   C.  301,  appx.  B.  no.  15.     For  a  sum- 

1982,  ]ip.  82,  31,  41,  42.  mary  of  the  contents  of  those  de- 

"  Victoria  Lepf.  Assembly  Votes  spatches,  see  post,  pp.  41)1,  41)2. 
and  Proc.  1877-78,  vol.  i.  jip.  296, 


.r^ 


s. 

eceived 
he  3ent 
for  de- 
dential, 
\ccord- 
Ciinter- 
y  liiose 
ber   28, 
icil  and 
5  v'ould 
1  secre- 
ise  con- 
Y  public 
ti*  men- 
lespatch 
lespatch 
t  minis- 
id  gives 

ssembly 
present 
of  Lord 
•lock  of 
ned   the 
ved  per- 
vf  trans- 
El  passed 
L-  a  copy 
affairs 
,  which 
|ior,  and 
olonies. 
I,  on  the 
e  public 
irnment 
eceived 


)r  a  sum- 
Itliese  de- 
4U2. 


IMPERIAL  CONTROL  OVER  COLONIAL  GOVERNORS. 


99 


and  acknowledged  by  the  secretary  of  state."  On  March  6, 
tlie  governor  (having  been  notified  by  telegram  that  the 
secretary  of  state  had  received  and  considered  this  paper) 
caused  a  copy  of  it  to  be  laid  before  both  houses.  Where- 
upon the  Legislative  Council  addressed  the  governor  on  the 
points  urged  in  the  m(^morandum,  and  found  fault  with  the 
course  taken  by  his  Excellency  in  respect  to  the  same.  This 
address  was  referred  to  the  ministry  for  their  consideration 
and  advice.  They  characterized  the  reflection  therein  upon 
the  governor  as  "  unfounded  and  gratuitous."  They  regarded 
the  memorandum  as  a  confidential  communication  sent  by 
ministers  to  the  governor,  which,  without  their  consen^  ought 
not  to  be  communicated  to  either  house  of  parliament.  They 
had  advised  the  withholding  of  that  document  in  the  first 
instance  from  the  council ;  being  of  opinion  "  that  it  would 
be  impossible  to  carry  on  the  executive  government  if  either 
house  of  parliament  had  the  right  to  insist  on  the  immediate 
production  of  any  documents  of  a  confidential  character 
placed  by  them  in  the  hards  of  the  governor."  The  council, 
in  asking  for  a  copy  of  the  memorandum,  were  "actuated, 
doubtless,  by  a  desire  to  produce  disunion  between  the  go- 
vernor and  the  ministry."  "  Had  their  application  been 
granted,  ministers  would  have  considered  that  a  breach  of 
confidence  had  been  committed,"  that  their  advice  had  been 
disregarded,  and  they  would  have  at  once  resigned.^ 

Governors  of  colonies,  holdino;  office  during:  the  plea-  "Removal 

o  1  Qf  transfer 

sure  of  the  Crown,  are  removable  at  any  time  before  of  gover. 
the  expiration  of  their  ordinary  term  of  office,  if  it 
should  appear  advisable  to  the  imperial  government  to 
recall  them.  Sometimes  colonial  governors  are  trans- 
ferred to  other  colonies,  on  personal  considerations  of 
fitness,  or  ability  to  cope  with  circumstances  of  peculiar 
difficulty. 

On  March  19,  1879,  the  secretary  of  state  for  the  colo- 
nies addressed  a  despatch  to  Sir   Bartle  Frere,  governor  of  RirUartle 
the  Cape  of  Good  Hope,  reproving  him  for  entering  upon  *'^^'^^" 
a  war  with  the   Zulus,  without  the  previous  sanction   and 
authority  of  her  Majesty's  government.     But  while  it  was 

»»  Commons  Papers,  1878,  C.  2173,  pp.  8,  54,  58,  63. 


nors. 


ill! 


100     PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


Sir  W. 
Denison. 


thought  necessary  to  animadvert  with  some  severity  upon  the 
conduct  of  Sir  Bartle  Frere  in  this  instance,  the  government 
mindful  of  his  eminent  public  services,  were  unwilling  to 
supersede  him  ;  being  convinced  that  his  continued  retention 
in  office  was,  upon  the  whole,  most  desirable,  notwithstanding 
his  presumed  error  of  judgment  on  this  occasion.  The  policy 
of  the  government,  in  still  retaining  the  government  of  South 
Africa  in  tiie  hands  of  Sir  Bartle  Frere,  after  their  condem- 
nation of  his  proceedings  in  the  despatch  of  March  19,  1879, 
gave  rise  to  a  motion  of  censure  in  the  House  of  Lords,  on 
March  25,  which  was  directed  alike  against  Sir  Bartle  Frere 
and  her  Majesty's  government.  After  a  long  debate,  how- 
ever, the  motion  was  negatived  by  a  large  majority. 

In  further  illustration  of  the  control  Avhicli  is  exer- 
cised by  her  Majesty's  secretary  of  state  over  colonial 
governors  as  imperial  officers,  the  following  precedents 
are  given  :  — 

In  1848,  Sir  William  Denison,  governor  of  Van  Diemen's 
Land  (now  known  as  Tasmania),  addressed  a  formal  com- 
plaint to  the  secretary  of  state  against  Sir  John  Pedder,  chief- 
justice  of  the  superior  court  in  that  colony,  for  alleged 
neglect  of  duty,  in  not  having  examined  and  certified  the 
validity  of  certain  acts  passed  by  the  governor  in  council, 
thereby  giving  occasion  to  much  confusion  and  litigation. 
The  governor  had  previously  caused  the  chief-justice  to  be 
tried  on  this  charge,  before  himself  and  the  Executive  Coun- 
cil, under  the  imperial  act  of  the  22  Geo.  III.  c.  75.  But,  at 
this  trial,  the  judge  had  been  acquitted.  Whereupon,  a  num- 
ber of  residents  in  the  colony  petitioned  the  queen,  complaining 
of  tlie  conduct  of  the  governor,  in  invading  the  independence 
of  the  bench,  and  for  other  arbitrary  proceedings,  and  soli- 
citing redress.  This  petition  was  forwarded  to  the  colonial 
secretary  through  the  governor,  pursuant  to  the  royal  instruc- 
tions in  such  cases."  In  reply,  the  secretary  of  state  directed 
the  governor  to  inform  the  memorialists  that  their  petition 
had  been  laid  before  the  queen,  but  that  her  Majesty  was  not 
pleased  to  make  any  order  thereon.^  And,  upon  a  motion  in 
the  House  of  Commons  to  censure  the  governor  for  his  con- 

«  Col.  Reg.  1879.  nos.  217-223. 

^  Commons  Papers,  1847-48,  vol.  xliii.  p.  681 ;  ibid.  1849,  vol.  xxxv. 
p.  77. 


L 


I 


ss. 

pon  the 
jrnment 
Uiiig  to 
Btention 
tantling 
e  policy 
)f  South 
3onclem- 
9,  1879, 
Olds,  on 
le  Frere 
te,  how- 

s  cxer- 
colonial 
cedents 

)iemen's 
lal  com- 
er, chief- 
1  alleged 
fied  the 
council, 
igation. 
to  be 
Coun- 
But,  at 
a  num- 
)laining 
ndence 
nd  soli- 
colonial 
instruc- 
directed 
petition 
was  not 
otion  in 
his  con- 

Ol.  XXXV. 


IMPERIAL  CONTROL  OVER  COLONIAL   GOVERNORS.       101 

duct  in  this  case,  the  secretary  of  state  defended  him.*  Never- 
theless, in  a  confidential  despatch,  he  reprimanded  Sir  W. 
Denison,  for  having  "  acted  r.ishly  and  unadvisedly,"  in  this 
matter,  —  a  reproof  which  tlie  governor  understood  "  as  a 
sort  of  hint  to  him  not  for  the  future  to  meddle  with  judges, 
except  in  case  of  absolute  necessity."  ^ 

During  the  progress  of  the  Maori  war  in  New  Zealand,  in  Sir  George 
1865  and  1866,  certain  allegations  of  inhumanity  in  dealing  ^^'^'y- 
with  the  Maoris  were  reported  to  the  secretary  of  state  for 
war,  by  a  gentleman  in  England,  upon  the  authority  of  a  pri- 
vate letter  received  by  him  from  a  colonel  commanding  one 
of  the  regiments  on  active  service  in  New  Zealand.  These 
charges  tended  to  implicate  not  only  the  military  authorities, 
but  also  the  governor  of  the  colony  (Sir  George  Grey)  and 
his  executive  council,  '•.  suggesting  or  approving  the  alleged 
acts  of  inhumanity.  Upon  being  made  acquainted  with  the 
circuiastances,  the  secretary  of  state  for  the  colonies  wrote 
confidentially  to  the  governor  for  explanations.  In  repl}'^.  Sir 
George  Grey  addressed  an  indignant  disclaimer  of  the  truth 
of  the  charges,  and  enclosed  a  minute  he  had  laid  before  his 
executive  council  on  the  subject,  wherein  he  denounced  the 
statement  made  to  the  secretary  for  war  as  a  "base  and 
wicked  calumny."  The  minute  concludes  by  stating  that  he 
should  transmit  a  copy  of  it  to  the  colonial  secretary,  and 
demand  as  his  right  that  copies  of  the  letters  in  which  the 
charge  was  preferred  should  be  communicated  to  him,  with  the 
name  of  the  accuser, "  and  that  a  full  inquiry  be  instituted  into 
the  whole  matter ;  and  he  declines  to  receive  the  communica- 
tion as  a  confidential  one."  Upon  the  receipt  of  this  despatch 
and  minute,  the  secretary  of  state  for  the  colonies  wrote  to  Sir 
G.  Grey  that  he  could  "  be  hardly  unaware  that  this  is  not  the 
tone  or  manner  in  which  the  officer  representing  the  queen 
ought  to  communicate  with  the  minister  from  whom  he  re- 
ceives her  Majesty's  commands  ; "  and  that  he  hoped,  upon 
reflection,  the  governor  would  see  the  propriety  of  recalling 
the  objectionable  minutes  and  despatch  he  had  written  on 
this  painful  question.  Whereupon,  the  governor,  without  re- 
ceding from  the  position  he  had  taken  in  regard  to  these 


«  Hans.  Deb.  vol.  civ.  p.  378. 

*  Commons  Paiiers,  1847-48,  vol.  xliii.  pp.  624-670.    Denisou's  Vice- 
regal Life,  vol.  i.  pp.  74,  97. 


102     PARLIAMENTARY   GOVERNMENT  IN  THE  COLONIES. 


unfounded  charges  against  himself  and  his  ministers,  ex- 
pressed "  the  fullest  and  most  unreserved  apology  "  for  the 
passages  in  his  despatch  which  were  considered  to  have  been 
couclied  in  improper  language.  This  retractation  was  received 
with  satisfaction  by  the  colonial  secretary. « 

Meanwhile,  the  writer  of  the  letter  upon  which  the  com- 
plaint against  tlie  New  Zealand  government  was  based  had 
ascertained  that  his  censures  were  unfounded  ;  and  he  wrote  to 
the  war  office,  desiring  to  withdi  nasty  and  ill-considered 

chavges.  But  Governor  Grey  was  of  opinion  that  stricter 
regulations  were  necessary,  in  order  to  prevent  vexatious  and 
unjustifiable  complaints  from  being  received  and  entertained 
by  the  imperial  authorities,  without  the  knowledge  of  the 
governor,  and  without  his  being  afforded  previous  opportu- 
nity of  refuting  them.  He  therefore  accompanied  his  apo- 
logy by  a  separate  despatch  of  the  same  date  (Feb.  1,  1867), 
wherein  he  called  the  attention  of  the  colonial  secretary  to  the 
evasion  of  the  spirit  of  the  rule  of  her  Majesty's  colonial  ser- 
vice, which  proliibits  complaints  against  a  governor  to  be 
made  otherwise  than  through  the  governor  himself.  He  also 
pointed  out  the  irregularity  of  permitting  military  officers  on 
active  service  in  a  colony  to  report  to  the  secretary  of  state 
for  war  direct  upon  matters  which  concern  the  local  govern- 
ment, and  without  their  knowledge.  On  Aug.  2,  18G7,  the 
Legislative  Council  of  New  Zealand  voted  a  resolution  of 
thanks  to  the  governor,  "  for  the  prompt  and  able  manner  in 
which  he  has  vindicated  the  honour  of  the  government  of  New 
Zealand  from  the  unfounded  charges  made  against  it,"  on 
this  occasion ;  and  at  the  same  time,  they  resolved,  that 
'*  the  mode  of  correspondence  which  has  been  adopted,  and 
the  course  generally  which  has  been  pursued,"  by  the  impe- 
rial government  in  this  matter,  were  calculated  to  impair  the 
authority  of  the  governor,  and  to  act  prejudicially  as  well  to 
her  Majesty's  service  as  to  her  New  Zealand  subjects.  These 
resolutions  were  duly  forwarded  to  the  secretary  of  state,  to 
be  laid  before  the  queen.  The  House  of  Representatives  of 
the  colony  agreed  to  similar  resolutions,  and  to  an  address  to 
the  queen,  v/hich  emphatically  complained  of  a  practice  that 
had  grown  up  iu  some  of  the  imperial  departments  of  state, 


«  Commons  Papers,  1867-68,  vol.  xlviii.  pp.  405-500. 


!> 


;es. 

ers,  ex- 

for  the 

ve  been 

received 

he  com- 
i,sed  had 
wrote  to 
iisidered 
stricter 
ous  and 
ertained 
I  of    the 
opportu- 
his  apo- 
.,  1867), 
ry  to  the 
nial  ser- 
ir  to   be 
He  also 
Seers  on 
of  state 
govern- 
867,  the 
ition   of 
anrier  in 
of  New- 
it,"  on 
ed,  that 
ted,  and 
le  impe- 
3air  the 
well  to 
These 
tate,  to 
ives  of 
dress  to 
ce  that 
f  state, 


I 


IMPERIAL  CONTROL  OVER  COLONIAL  GOVERNORS.       103 

of  receiving  letters  from  imperial  officers  in  the  colony, 
impugning  the  conduct  of  the  governor  and  his  advisers, 
all  knowledge  of  which  had  been  withheld  from  tlie  governor 
himself,  and  which  made  further  representations,  that  were 
humbly  submitted  to  her  Majesty's  consideration.  In  reply, 
the  colonial  secretary  acknowledged  the  receipt  of  these  pa- 
pers, but  stated  that  her  Majesty  had  not  thought  fit  to  give 
any  directions  concerning  them.'*  Subsequently,  however, 
clear  and  satisfactory  regulations  were  established,  in  regard 
to  militar}'^  and  naval  correspondence  in  the  colonies,  which 
will  prevent  the  recurrence  of  the  evils  complained  of  by  the 
New  Zealand  government  and  legislature,  and  will  at  all  times 
suffice  to  uphold  the  dignity  and  authority  of  the  governor, 
as  representing  the  sovereign,  in  every  colony  of  the  em- 
pire.' During  the  progress  of  the  Kaffir  insurrection,  at  the 
Cape  of  Good  Hope,  in  1878,  these  new  regulations  were  duly 
observed  by  the  imperial  military  authorities  employed  therein, 
with  the  most  gratifying  results.^ 

In  1865,  the  Assembly  of  the  colony  of  Victoria  endea-  SirCharles 
voured  to  pass  a  new  customs  tariff,  which  embodied  the  ^*"'"S- 
principle  of  protection  to  native  industry,  to  which  it  was 
known  that  a  majority  in  the  Legislative  Council  was  op- 
posed, by  tacking  the  same  to  the  annual  appropriation  bill. 
The  Legislative  Council,  being  debarred  by  the  Constitutional 
Act  from  amending  a  bill  of  supply,  rejected,  by  "  laying  aside  " 
the  whole  measure  ;  previously  endeavouring,  though  unsuc- 
cessfully, by  means  of  a  conference,  to  obtain  an  opportunity 
of  expressing  an  unfettered  judgment  on  the  tariff  question. 
Accordingly,  the  legislature  was  prorogued,  without  either  the 
grant  of  supplies  or  the  enactment  of  the  tariff.  The  difficulties 
which  arose  out  of  these  proceedings  were  undoubtedly  brought 
on  by  an  overstrained  exercise  of  their  powers,  on  the  part 
of  both  the  deliberative  chambers,  and  should  have  been  met 
by  earnest  endeavours  on  the  part  of  the  governor  (Sir  Charles 
Darling)  to  induce  both  sides  to  agree  to  such  concessions  as 
might  be  in  accordance  with  the  true  spirit  of  the  constitu- 
tion, and  by  a  resolute  determination  on  his  part  to  sanction 
no  step  which  was  not  strictly  authorized  by  law. 


^  Commons  Papers,  1867-68, 
vol.  xlviii.  500-520. 

'  Col.  Rejr.  1879,  nos.  197-210. 
For  these  regulations,  set  j)ost,  p.  276. 


i  Commons  Papers,  1878,  C. 
2079,  p.  Ill,  C.  2100,  p.  19.  And 
see  post,  p.  288. 


-^i3 


I    1 


104     PARLIAMENT  ART  GOVERNMENT  IN  THE  COLONIES. 

But,  instead  of  adhering  to  this  constitutional  course,  the 
governor  —  with  no  desire   to  favour  any  particuhir  party 
or  set  of  men,  but  from  hick  of  firmness  and  discretion  — 
yielded  to  the  pressure  put  upon  him  by  his  ministers,  on  whose 
advice  the  Assembly  had  acted  ;  sanctioned  the  levy  of  the  new 
duties,  upon  the  mere  resolution  of  the  Assembly;  permitted 
his  ministers  to  contract  a  loan  with  a  bank  to  obtain  money  for 
public  purposes ;  and  approved  of  the  payment  of  official  salaries 
"without  the  authority  of  an  act  of  legislature.    In  justification 
of  these  proceedings,  he  pleaded  the  usage  of  the  Imperial  Par- 
liament, and  the  extreme  necessity  of  the  case.    But  the  secre- 
tary of  state  for  the  colonies  (Mr.  Card  well),  in  a  despatch  dated 
Nov.  27,  1865,  severely  reprimanded  the  governor  for  these 
doings.     lie  showed  that  he  had  misunderstood  the  imperial 
practice  ;  that  immediate  effect  was  given  to  resolutions  of 
the  House  of  Commons,  in  matters  of  supply  and  taxation,  only 
when  there  was  a  fair  presumption  that  the  House  of  Lords 
would  approve  of  the  same  ;  and  that  if  they  should  after- 
wards disapprove,  by  rejecting  a  bill  based  on  the  resolutions 
in  question,  the  duties  collected  in  anticipation  of  their  agree- 
ment were  returned,  and  ceased  to  be  levied.     He  pointed 
out  the  irregularity  of  permitting  extraneous  provisions  to 
be  included  in  a  supply  bill ;  and  of  government  incurring 
pecuniary  obligations,  or  expending  any  public  money  (ex- 
cept under  circumstances  of  extreme  public  necessity),  with- 
out   the   previous   authority  of    Parliament.      Finally,   the 
colonial  secretary  declared  "that  in  these  three  respects, — 
in  collecting  duties  without  sanction  of  law ;  in  contracting  a 
loan  without  sanction  of  law ;  and  in  paying  salaries  without 
sanction  of  law, — the  governor  had  departed  from  the  princi- 
ple of  conduct  announced  by  himself  and  approved  by  the 
colonial  secretary, — the  principle  of  rigid  adherence  to  the 
law.      I  deeply  regret  this.      The  queen's  representative  is 
justified  in  deferring  very  largely  to  his  constitutional  advis- 
ers in  matters  of  policy,  and  even  of  equity  ;  but  he  is  im- 
peratively bound  to  withhold  the  queen's  authority  from  all 
or  any  of  those  manifestly  unlawful  proceedings  by  which 
one  political  party,  or  one  member  of  the  body-politic,  is  occa- 
sionally tempted  to  endeavour  to  establish  its  preponderance 
over  another.     I  am  quite  sure  that  all  honest  and  intelligent 
colonists  will  concur  with  me  in  thinking  that  the  powers  of 


. 


ES. 


IMPERIAL  CONTROL  OVER  COLONIAL  GOVERNORS.       105 


ii'se,  the 

r  party 

Qtion  — 

11  whose 

tlie  new 

irmitted 

oney  for 

salaries 

ifi  cation 

rial  Par- 

le  secre- 

A\  dated 

)r  these 

imperial 

tions  of 

on,  only 

f  Lords 

1  after- 

olutions 

r  agree- 

pointed 

sions  to 

earring 

By  (ex- 

,  with- 

ly,   the 

ects, — 

icting  a 

vithout 

princi- 

by  the 

to  the 

itive  is 

advis- 

is  ira- 

om  all 

which 

s  occa- 

erance 

lligent 

v^ers  of 


the  Crown  ought  never  to  be  used  to  authorize  or  facilitate 
any  act  which  is  required  for  an  immediate  political  i)urpose, 
but  is  forbidden  by  law."  In  conclusion,  the  secretary  says : 
"  I  have  to  instruct  you  in  this,  as  in  every  other  case,  to 
conform  yourself  strictly  to  the  line  of  conduct  which  the  law 
prescribes."'' 

In  a  later  despatch,  dated  Feb.  26,  18G6,  the  colonial  secre- 
tary comments  upon  subsequent  acts  of  Governor  Darling, 
wherein  he  identified  himself  so  completely  with  his  ministers 
in  their  illegal  acts,  as  to  denounce  the  conduct  of  their  oppo- 
nents ;  viz.,  of  certain  ex-members  of  the  executive  council  who 
had  petitioned  the  queen,  complaining  of  the  conduct  of  the 
governor  in  sanctioning  the  illegal  proceedings  of  his  ministers 
in  a  most  unwarrantable  manner.  He  observes  that  "  it  is  one 
of  the  first  duties  of  the  queen's  representative  to  keep  himself 
as  far  as  possible  aloof  from  and  above  all  personal  conflicts. 
He  should  always  so  conduct  himself  as  not  to  be  precluded 
from  acting  freely  with  those  whom  the  course  of  parliamentary 
j)roceedings  might  present  to  him  as  his  confidential  advisers. 
While,  on  the  one  hand,  it  is  his  duty  to  afford  to  his  actual  ad- 
visers all  fair  and  just  support,  consistently  with  the  observance 
of  the  law,  he  ought,  on  the  other  hand,  to  be  perfectly  free  to 
give  the  same  support  to  any  other  ministers  whom  it  may  be 
necessary  for  him  at  any  future  time  to  call  to  his  counsels." 
He  adds  that  inasmuch  as  the  governor,  by  his  own  act,  had  Dismissal 
placed  himself  in  "  a  position  of  personal  antagonism  towards  nfj^j^arr 
almost  all  those  whose  antecedents  point  them  out  as  most  ling, 
likely  to  be  available  in  the  event  of  any  change  of  ministry," 
it  is  impossible  that  he  could  with  advantage  continue  to  con- 
duct the  government  of  the  colony.  "  As  soon,  therefore,  as 
your  convenience  will  admit  of  your  leaving  the  colon}',  I 
should  wish  you  to  place  the  government  in  the  hands  of 
General  Carey,  whose  duty  it  will  be  to  administer  it  until 
your  successor  shall  be  appointed.  I  trust  that  no  occasion 
will  arise  in  which  it  will  be  clear  to  his  judgment  that  the 
advice  of  his  ministers  for  the  time  being  would  involve  a 


,? 


■jv 


^  Commons  Papers,  1866,  vol. 
1.  p.  695,  and  see  p.  697  for  another 
despatch,  on  the  same  subject,  dat- 
ed Jan.  26,  1866.  J'or  an  instance 
of  the  firmness  of  Sir  William  De- 


nison,  when  governor  of  Xew  South 
Wales,  in  1860,  in  resisting  simi- 
lar unlawful  conduct  recommended 
by  his  ministers,  see  his  Vice-regal 
Life,  vol.  i.  p.  497. 


106      PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

violation  of  the  law.  In  such  a  case,  it  would  doubtless  be 
his  duty  to  refuse  compliance  and  to  endeavour  to  obtain  the 
aid  of  other  ministers.  Her  Majesty's  government  have  no 
wish  to  interfere  in  any  questions  of  purely  colonial  policy, 
and  only  desire  that  the  colony  shall  be  governed  in  con- 
formity with  the  principles  of  responsible  and  constitutional 
government,  subject  always  to  the  paramount  authority  of 
the  law." » 

At  this  juncture,  upon  the  advice  of  ministers  a  dissolution 
of  the  parliament  of  Victoria  took  place.  The  new  House 
of  Assembly  gave  a  large  majority  to  ministers,  thereby  justi- 
fying the  opinion  frequently  expressed  by  Governor  Darling 
to  the  secretary  of  state  during  the  progress  of  tliis  painful 
controversy,  that  an  appeal  to  the  constituencies  would  not 
tend  to  the  solution  of  the  difficulty  which  had  arisen  between 
the  two  houses,  or  warrant  him  in  taking  steps  which  might 
lead  to  the  removal  of  the  existing  ministry  from  power.™ 

After  his  receipt  of  the  despatch  of  Nov.  27,  1865,  above 
cited.  Governor  Darling  endeavoured,  as  far  as  possible,  to  re- 
trace his  steps,  and  to  conform  to  the  instructions  of  her 
Majesty's  government.  But  matters  had  gone  too  far.  His 
ministers  took  to  themselves  the  censure  oifieially  laid  upon 
the  governor,  and  resented  the  action  of  the  colonial  secretary. 
They  resigned  office  ;  not,  indeed,  with  special  reference  to  the 
interference  of  the  imperial  government,  but  on  account  of 
the  continued  resistance  of  the  Legislative  Council  to  their 
financial  measures.  But  the  efforts  to  form  a  new  ministry, 
which  should  bring  about  harmonious  relations  between  the 
two  houses,  proved  impracticable,  and  the  late  ministers  were 
reinstated  in  office."  A  better  understanding,  however,  was 
at  length  arrived  at,  by  mutual  concessions  on  the  part  of 
both  houses,  and  before  the  departure  of  Sir  C.  Darling  he 
had  the  satisfaction  of  knowing  that  the  long-continued  strug- 
gle was,  for  a  time  at  least,  at  an  end.** 

On  May  25,  1866,  "the  officer  administering  the  govern- 
ment of  Victoria  "  was  notified  of  the  appointment  of  the  Hon. 
H.  Manners  Sutton  (afterwards  Lord  Canterbury)  to  succeed 


*  Commons   Papers,   1866,  vol. 
l.p.  701. 

^  Ibid.  pp.  740,  749. 


"  Ihid.  pp.  709-793. 
"  Ibid.   p.  790.      And  see  ibid. 
1867-68,  vol.  xlviii.  p.  G35. 


m 


'*» 


IMPERIAL  CONTROL  OVER  COLONIAL  GOVERNORS.       107 

Sir  C.  Darling,  as  governor  of  the  colony.  Mr.  Secretary 
Cardwell  took  this  opportunity  to  reiterate  the  points  wherein 
Sir  C.  Darling  had  failed  to  fulfil  the  trust  committed  to  him 
to  the  satisfaction  of  the  imperial  government,  and  to  impress 
upon  his  successor  the  necessity  of  carefully  abstaining  from 
any  iF '  rritiniate  use  of  the  powers  conferred  upon  the  gover- 
nor by  the  Crown.  Before  his  departure  from  England,  Mr. 
Manners  Sutton  would  have  an  opportunity  of  learning 
full  particulars  of  the  past  controversy  in  Victoria,  and  of 
applying  for  all  needful  instructions  for  his  future  guidance 
from  rer  Majesty's  government.  "  But  in  this,  as  in  every 
case  in  which  the  working  of  representative  institutions  is  in 
issue,  the  ultimate  result  must  rest  upon  the  forbearance,  the 
judgment,  and  the  public  spirit  of  the  inhabitants  of  the  co- 
lony, —  and  more  especially  upon  the  wisdom  and  temper  of 
those  by  whom  the  deliberations  of  the  colony  are  guided."  p 

On  April  18  and  25,  1866,  on  the  eve  of  his  retirement  Governor 
from  Victoria,  Governor  Darling  addressed  despatches  to  the  protests 
secretary  of  state,  containing  an  energetic  protest  against  the  "F'"^' 
injury  to  his  public  character  involved  in  the  reasons  assigned  missal, 
for  his  removal  from  office,  and  expressing  his  intention  of 
appealing  for  redress  to  the  House  of  Commons.    At  the  same 
time  he  forwarded  to  his  executive  council  a  lengthy  official 
minute  protesting  against  the  decision  of  lier  Majesty's  go- 
vernment.    This  objectionable  proceeding  was  noticed  in  a 
despatch  from  the  colonial  secretary  to  Governor  M.inners 
Sutton,   dated   June   25,  1866,  as  inconsistent  with   Sir  C. 
Darling's  duty  while  still  holding  the  queen's  commission  as 
governor.'! 

On  March  20, 1866,  a  debate  occurred  in  the  House  of  Com- 
mons upon  a  motion  for  papers  in  reference  to  the  "  dead- 
lock "  in  Victoria,  wherein  frequent  reference  was  made  to 
the  despatches  written  by  Mr.  Secretary  Cardwell  during 
the  progress  of  this  protracted  struggle,  and  to  the  reasons 
which  occasioned  the  recall  of  Governor  Darling.     The  result 


Vkl 


30  ibid. 


P  Commons  Papers,  1866,  vol. 
1.  p.  779. 

1  Ibid.  pp.  795-828;  Ihid.  1867, 
vol.  xlix.  p.  557.  In  a  letter,  ad- 
dressed to  the  Earl  of  Carnarvon 
(Mr.  Cardwell's  successor  as  colo- 


nial secretary),  dated  Hampton 
Court,  Sept.  12,  ISGO,  Sir  C.  Darling 
explains  why  he  had  talien  tlio  step 
complained  of,  and  declares  that  he 
had  no  intention  to  contravene  esta- 
blished rules.     {Ibid.  p.  G17.) 


108     PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

of  this  discussion  was  "  to  draw  forth,  from  every  quarter  of 
the  house,  the  warmest  encomiums  on  the  course  pursued  " 
by  the  colonial  secretary,  as  having  been  "  moderate,  wise, 
and  well  considered."  In  this,  and  in  several  other  questions 
of  difficulty,  the  policy  of  the  secretary  of  state  "had  been 
such  as  to  strengthen  the  influence  of  this  country  in  her 
colonies,  and  to  increase  the  confidence  of  the  colonies  in  the 
mother  country." ' 

The  last  act  of  Sir  Charles  Darling,  previous  to  his  depar- 
ture from  Victoria,  was  to  transmit,  to  the  secretary  of  state 
for  the  colonies,  on  May  7,  1866,  numerous  petitions  from 
inhabitants  of  Victoria,  expressive  of  their  high  sense  of  the 
tact  and  wisdom  displayed  by  Governor  Darling  in  his  con- 
duct during  the  continuance  of  the  crisis  occasioned  by  the 
unhappy  differences  which  prevailed  between  the  two  legis- 
lative chambers ;  deeply  regretting  his  recall ;  and  depre- 
cating, in  the  strongest  terms,  "  the  unnecessary  interference 
of  the  secretary  of  state  in  the  internal  af[\\irs  of  the  colony." 
The  receipt  of  these  petitions  was  acknowledged,  in  a  despatch 
to  Governor  Manners  Sutton,  without  observation  or  com- 
ment.* 

On  May  16,  1866,  when  at  Sydney,  New  South  Wales,  — 
after  having  transferred  the  government  of  Victoria  to  tlie 
hands  of  Brigadier-General  Carey,  pending  the  arrival  of  the 
new  governor,  Mr.  Manners  Sutton,  —  Sir  C.  Darling  ad- 
dressed a  letter  to  the  secretary  of  state,  enclosing,  for  pre- 
sentation to  the  queen,  a  humble  petition  that  her  Majesty 
would  be  graciously  pleased  to  appoint  a  tribunal  before 
which  the  whole  of  his  conduct  as  governor  of  Victoria,  but 
especially  that  part  of  it  upon  which  the  alleged  reasons  for 
his  recall  were  based,  might  be  subjected  to  the  strictest  in- 
vestigation. Upon  his  arrival  in  England,  Sir  C.  Darling, 
in  various  letters  to  the  newly  appointed  colonial  secretary, 


'  ITans.  Deb.  vol.  clxxxii.  p.  G21. 
See  Sir  C.  Davling's  letter  to  Lord 
Carnarvon,  of  Sept.  11,  1800,  in  re- 
ply to  certain  stateir.c:)ts  made  by 
Mr.  Secretary  Cardwell,  in  the 
course  of  this  debate.  Commons 
I'aper.s,  1867,  vol  xlix.  p.  Oil. 
IJnt  in  a  later  debate,  in  the  House 
of  Lords,  on  May  8,  1808,  the  Duke 


of  Argyll  stated  that  Sir  C.  Dar- 
liiiEj's  recall,  by  Mr.  Secretary  Card 
well,  "  was  assented  to,  not  only  by 
his  own  party,  but  by  all  parties  in 
both  Houses  of  Parliament."  Hans. 
Deb.  vol.  cxci.  p.  1970. 

•  Commons   Papers,   1867,  vol. 
xlix.  pp.  500,  501. 


IMPERIAL  CONTROL  OVER  COLONIAL  GOVERNORS. 


109 


00- 


(Earl  Carnarvon)  reiterated  this  request.  In  reply  thereto, 
Sir  C.  Darling  was  repeatedly  informed  that  his  recall  having 
been  sanctioned  by  her  Majesty,  on  the  advice  of  the  late 
government,  Lord  Carnarvon  could  not  entertain  the  present 
appeal,  or  advise  a  compliance  therewith.  "  As  to  the  effect 
which  such  a  sustained  decision  may  have  upon  your  eligibi- 
lit)'-  for  a  future  appointment,  or  upon  your  retiring  pension, 
his  lordship  will  be  ready,  whenever  these  questions  arise,  to 
take  that  view  of  your  long  services  to  the  Crown,  and  your 
general  qualifications,  Avhich  may  best  combine  a  due  regard 
for  the  public  service  with  your  private  interests." ' 

A  review  of  the  further  proceed ino-s  arisino;  out  of  Governors 

not  to  'It!- 

the  recall  of  Sir  Charles  Darling  from  the  government  cept  pre- 
of  Victoria  will  lead  us  to  the  consideration  of  another  th"  In  ™"* 
important  principle  which  has  been  established  by  her  ^'*"^" 
Majesty's  government  in  refprence  to  colonial  gover- 
nors ;  viz.,  the  rule  which  forbids  them  to  accept,  for 
themselves  or  their  family,  any  pecuniary  or  valuable 
Present  from  the  colony  over  which  they  have  presided. 

On  May  3,  1866,  a  select  committee  of  the  Legislative  As- 
sembly of  Victoria,  appointed  to  prepare  a  farewell  address 
to  his  Excellency  Sir  C.  Darling,  and  to  report  in  reference 
to  his  removal  from  office,  agreed  to  recommend  that  a  par- 
liamentary grant  of  twenty  thousand  pounds  be  made  to  Lady 
Darling,  for  her  separate  use,  in  consideration  of  the  services 
which  his  Excellency  had  rendered  in  the  administration  of  the 
government  of  the  colony,  "  from  which  he  has  been  recalled 
for  political  reasons  only,  and  seeing  that  his  removal  will  entail 
upon  his  family  very  heavy  pecuniary  loss."  Innnediately 
upon  being  informed  of  this  recommendation,  Governor  Dar- 
ling sent  a  message  to  the  Assembly,  to  intimate  that  his  fa- 


*  Commons  Pcipers,  1867,  vol. 
xlix.  pp.  51)7,  GIO,  051,  C(J4.  Subse- 
quently, Sir  C.  Darling  chvimeJ  the 
right  of  appealing  to  the  imperial 
parliament  for  redress.  Ministers 
declined  to  pledge  themselves  not  to 
oppose  the  appeal ;  but  agreed  to 
an  address  for  pajKjrs  on  the  case. 
Neither  Ijouso  took  actiou  ou  the 


papers.  (Fbul.  pp.  GG5,  007.)  See 
also  the  case  of  Lord  TiM-rington, 
governor  of  Ceylon,  discussed  in 
Parliament  in  1819  and  IHoO.  And 
the  inquiry  into  conduct  of  ex-go- 
vernor llincks  in  British  Ciiiana. 
Ihid.  1871,  vol.  XX.  p.  487:  1872, 
vol.  xliii.  p.  3. 


r. 


[il 


r  I 


110       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

mily  would  not  feel  at  liberty  to  accept  the  bounty  of  the 
parliament  and  people  of  Victoria  until  it  shall  be  known 
whether  her  Majesty  ha^  any  commands  to  signify  therein, 
and  until  the  governor  shall  have  petitioned  the  queen  for  an 
investigation  into  his  conduct  in  office.  The  Assembly,  how- 
ever, proceeded  at  once  to  vote  an  address  to  the  queen,  pray- 
ing her  to  sanction  the  acceptance  of  the  proposed  grant  to 
Lady  Darling ;  and  the  same  was  duly  forwarded  after  Sir 
C.  Darling's  departure,  through  the  officer  administerhig  the 
government  of  the  colony.  ^ 

On  Sept.  12  and  15,  and  on  Oct.  15,  17,  and  20,  1866,  Sir 
C.  Darling,  having  learnt  that  the  Victoria  Assembly  had 
voted  the  aforesaid  address,  made  application  to  the  secre- 
tary of  state  urgently  soliciting  that  no  official  obstacle  might 
be  interposed  to  prevent  his  wife  from  accepting  the  proposed 
grant;  as  the  result  of  his  recall  had  been  to  reduce  him  almost 
to  a  state  of  poverty.  In  reply.  Sir  Charles  was  informed 
that  the  Crown  could  not  be  advised  to  sanction  the  literal  or 
substantial  violation  of  the  rule  which  declares  that  a  gover- 
nor should  not  receive  pecuniary  or  valuable  i)resents  from 
the  inhabitants  of  the  colony  over  which  lie  pj-esides,  either 
during  the  continuance  of  his  service,  or  on  leaving  it ;  and 
which  rule  has  always  been  rigidly  enforced.  "  It  is  i)lain 
that  such  a  rule  would  be  merely  nugatory  if  it  were  held 
that  what  the  governor  was  precluded  fiom  receiving  might 
properly  be  given  to  his  wife."  It  is  impossible  that  the  .ac- 
ceptance of  the  proposed  gift  should  be  regarded  otherwise 
than  as  a  final  relinquishment  by  Sir  C.  Darling  of  her  Majes- 
ty's service,  and  of  all  the  emoluments  or  expectations  at- 
taching to  it.  An  answer,  to  the  same  effect,  was  sent 
through  the  governor,  in  reply  to  the  aforesaid  address  of  the 
Legislative  Assembly.^ 

Ttie  rule  in  question  first  appears  in  the  revised 
edition  of  the  Colonial  Regulations,  issued  in  184", 
(no.  18),  in  the  following  words :  A  colonial  governor 
*'  is  prohibited  from  leceiving  or  giving  presents  on  his 
own  account."     In  the  new  edition  of  the  Regulations, 


"  Commons  Papers,  1867,  vol.  xlix.  pp.  559,  585. 
*  Ibid.  pp.  51)3,  019-023,  039-051. 


IMPERIAL  CONTROL  OVER  COLONIAL  GOVERNORS.       Ill 


might 


jvised 

184'^ 

^ernor 

Ion  his 

Ltions, 


issued  in  1856  (no.  33),  this  rule  is  thus  enlarged : 
"  He  is  prohibited  from  receiving  presents,  pecuniary 
or  valuable,  from  the  inhabitants  of  the  colony,  or  any 
class  of  them,  during  the  continuance  of  lis  office;  and 
from  giving  such  presents ;  and  this  rule  is  to  be 
equally  observed  on  leaving  his  office."  ^^  Following 
it,  in  that  and  all  subsequent  editions,  is  another,  which 
provides  that  "in  cases  where  money  has  been  sub- 
scribed, with  a  view  of  marking  public  approbation  of 
the  governor's  conduct,  it  may  be  dedicated  to  objects 
of  general  utility,  and  connected  with  the  name  of  the 
person  who  has  merited  such  a  proof  of  the  general 
esteem." 

"  The  principle  is,  that  no  governor  shall  be  allowed 
to  expose  himself  to  the  temptation  which  may  arise 
from  expecting  beneficial  donations  from  the  colonists, 
or  any  section  of  them,  or  to  the  suspicions  which  arise 
from  his  acceptance  of  such  donations.  Whether  they 
are  made  directly  to  himself,  or  in  trust  for  him,  or  to 
some  member  of  his  family,  so  that  he  may  have  the 
enjoyment  of  them,  is  obviously  immaterial."  But, 
while  the  reasons  for  this  prohibition  are  self-evident, 
it  has  been  officially  explained  "  that  they  rest  on  no 
considerations  affecting  the  honour  of  gentlemen  se- 
lected by  the  Crown  to  fill  situations  of  this  high 
importance,  but  on  the  necessity  of  preserving  them, 
in  the  eyes  of  the  public,  free  from  all  suspicion. 
These  reasons  apply  to  the  receipt  of  presents  of  the 
same  description  by  a  governor  on  leaving  his  office 
with  scarcely  less  force  than  during  its  continuance. 
And,  although  her  Majesty's  government  cannot  exer- 


Gover- 
nors,  and 
their  fami- 
ly, not  to 
receive  or 
give  pre- 
sents from 
or  to  colo- 
nists. 


n 


><i 


Ex-povor- 
nors  like- 
wise. 


^  This  revised  rule  was   stated,  lations,    in    1856,   there   had    been 

in  a  colonial   office  circular,  dated  some   laxity   in    the   observance  of 

May  26,  1855,  as  having  boon  then  this  rule,  but  since  thou  "  it  has  al- 

"  for     some     time      established,"  ways  boon  rigidly  enforced."     Coni- 

though  "  not  universally   known."  nions  Papers,  1867,  vol.   xlix.  p. 

Prior  to  the  issue  of  the  new  llegu-  G63. 


Si 


t 


Proposed 
grant  to 
Lady  Dar- 
ling, from 
Victoria 
Assembly. 


112       PARLIAMENTARY  GO^'TJIiNMENT  IN  THE  COLONIES. 

cise  any  direct  control  over  the  actions  of  gentlemen 
on  the  point  of  leaving  the  public  service,  they  feel  it 
their  duty  to  record  this  opinion,  and  to  express  their 
hope  that  it  may  be  acted  on  as  a  general  rule."  * 

On  April  17,  1867,  Sir  C.  Darling  wrote  the  secretary  of 
state  for  the  colonies  (the  Duke  of  Buckingham)  that,  com- 
pelled by  the  increasing  pressure  of  painful  circumstances. 
Lady  Darling  had  decided  to  accept  the  proposed  grant  from 
the  Legislative  Assembly  of  Victoria,  and  that,  tlierefore,  in 
accordance  with  the  requirements  of  liis  Grace's  predecessor 
in  office,  Sir  C.  Darling  finally  relinquished  the  colonial  ser- 
vice, and  all  the  emoluments  or  expectations  attaching  to  it. 
This  determination  was,  at  his  request,  made  known  to  the 
governor  of  Victoria.^ 

Whereupon  his  responsible  advisers  —  who  had  hitherto  re- 
frained from  urging  any  steps  to  give  effect  to  the  known 
desire  of  the  Legislative  Assembly  to  indemnify  Sir  C.  Darling 
through  his  wife,  for  his  losses,  in  being  recalled  from  the 
government  of  the  colony,  without  receiving  a  pension  or 
other  compensation  for  past  services  —  recommended  Gover- 
nor Manners  Sutton  to  authorize,  by  message,  the  initiation 
of  a  grant  of  twenty  thousand  pounds  to  Lady  Darling,  in 
accordance  with  the  address  of  the  Assembly,  dated  May  9, 

1866.  Deeming  his  consent  to  this  recommendation  to  be 
merely  "a  formal  act,"'  necessary  in  order  to  afford  to  the 
Assembly  a  constitutional  opportunity  of  discussing  the  ex- 
pediency of  the  grant,  and  not  to  be  regarded  as  implying  any 
personal  opinion  with  respect  to  the  policy  of  the  proposal, 
the  governor  at  once  acted  upon  this  advice  ;  and  on  July  23, 

1867,  additional  estimates,  including  the  proposed  vote  to 
Lady  Darling,  were  transmitted  to  the  Assembly,  agreed  to 
by  that  house,  and  included  in  the  appropriation  bill." 

The  Legislative  Council,  however,  took  exception  to  this 
vote,  and  on  account  of  it  they  rejected  the  appropriation  bill. 
This  renewal  of  the  embarrassments  of  previous  years  was 
regarded  by  ministers  as  an  attempt,  on  the  part  of  the  Legis- 


M 


^  Commons  Papers,  1867,  vol.  xlix.  pp.  620,  663. 
y  Ihid.  1867-68,  vol.  xlviii.  p.  682. 
'  Ibid.  p.  U3U. 


I 


[ES. 

tlemen 
feel  it 
;s  their 

X 

etary  of 
at,  corn- 
stances, 
nt  from 
;fore,  in 
iecessor 
lial  ser- 
ng  to  it. 
I  to  the 

lerto  re- 

!  known 

Darling 

rom  the 

nsion  or 

1  Gover- 

nitiation 

rling,  in 

May  9, 

n  to  be 

to  the 

the  ex- 

ing  any 

ii'oposal, 

|July  23, 

vote  to 

;reed  to 

to  this 
tion  bill. 
3ars  was 
Legis- 


f 


IMPERIAL  CONTROL  OVER  COLONIAL  GOVERNORS.       113 

lative  Council,  to  obtain,  by  indirect  means,  co-ordinate 
power  with  the  Assembly  in  dealing  with  the  finances  of  the 
country.  They  did  not,  under  existing  circumstances,  con- 
sider it  t.lvisable  to  recommend  an  appeal  to  tlie  people  by 
a  dissolution  of  parliament,  but  agreed  to  advise  an  early 
prorogation,  for  a  short  period,  so  that  at  the  re-assembling 
of  parliament,  another  opportuuity  might  be  afforded  to  the 
Legishative  Council  of  considering  the  appropriation  bill.  The 
governor  was  unwilling  to  accede  to  this  proposal.  He  inti- 
mated that  he  would  rather,  at  once,  place  himself  constitu- 
tionally in  communication  with  those  who  had  induced  the 
Legislative  Council  to  take  this  step.  Acting  upon  this  sug- 
gestion, the  ministry  resigned.  The  governor  then  applied 
first  to  one,  and  afterwards  to  another,  prominent  member  of 
the  Legislative  Council,  to  assist  him  with  their  advice  under 
the  unusual  circumstances  which  had  arisen.  He  did  not 
invite  either  of  these  gentlemen  to  become  "  a  minister ;  " 
neither  did  he  adopt  this  "  unusual  course,"  "  because  he  de- 
sired to  give  to  one  political  party  a  victory  over  the  other,  or 
to  imply  official  or  personal  favour  or  disfavour  for  either,  but 
because  his  advisers  were  admittedly  and  confessedly  disabled, 
by  the  rejection  of  the  appropriation  bill,  from  conducting 
the  administration  of  public  affairs,  as  regards  the  satisfaction 
of  pecuniary  claims  upon  the  government,  in  the  usual  and 
strictly  constitutional  manner."  Moreover,  the  governor  was 
not  prepared  to  commission  any  gentleman  to  form  a  new 
government  until  he  was  previously  satisfied  that  that  step 
would  remove,  or  mitigate,  existing  embarrassments,  as  w^ll 
as  afford  a  prospect  of  restoring  harmonious  action  in  tl  e 
legislature.  The  first  member  of  the  Legislative  Council  who 
was  thus  invited  to  advise  with  the  governor  in  this  emergency 
declined  to  act,  because  he  considered  that  he  was  thereby 
asked  to  act  as  the  governor's  ''  legal "  and  not  as  his  "  con- 
stitutional "  adviser.  The  other  legislative  councillor  with 
greater  propriety,  and  with  a  higher  appreciation  of  the  con- 
stitutional rights  of  a  governor  in  a  public  emergency,** 
agreed  to  put  himself  into  communication  with  leading  mem- 
bers of  both  houses,  with  a  view  to  a  settlement  of  existing 
embarrassments  ;  but  his  efforts  proved  unsuccessful.    Where- 


Lcpisla- 
tivf  Coun- 
cil object 
to  tliis 
grant. 


•  See  Todd,  Pari.  Govt.  vol.  i.  p.  226. 
8 


114       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

upon  his  Excellency  reinstated  in  their  former  position,  as  his 
responsible  advisers,  the  administration  whose  resignations 
were  still  in  his  hands,  but  who,  at  his  request,  had  continued 
to  hold  office  until  their  successors  should  be  appointed.^ 

Agreeably  to  the  advice  tendered  to  him  before  their  resigna- 
tion, and  repeated  ujjou  their  resumption  of  office,  the  governor 
prorogued  the  legislature  for  eight  days  ;  temporar}--  arrange- 
ments being  agreed  to  meanwhile,  to  meet  pressing  current 
expenditure.  The  governor's  course  in  this  crisis,  though  it 
was  not  universally  approved,  was  actuated  by  a  desire  "  to 
combine  with  strict  obedience  to  the  law,  and  an  abstinence 
from  any  act  which  might  be  regarded  as  evincing  personal 
or  political  favour  or  disfavour  of  a  particular  political  party, 
a  moderating  influence  with  both."  This  line  of  conduct  in 
the  difficult  position  in  which  he  was  placed  was  regarded  by 
the  colonial  secretary  as  evincing  a  sound  discretion,  and  he 
was  encouraged  to  persevere  in  the  course  of  entire  neutrality 
which  he  had  hitherto  observed  ;  "  not  taking  part  with  one 
side  or  the  other  in  a  controversy  which  must  be  locally  de- 
cided. It  is  for  the  colonial  legislature  to  discover,  by  com- 
mon consent,  some  mode  by  which  the  present  state  of  things 
can  be  put  an  end  to,"  before  it  "  results  in  discredit  to  the 
colony  and  injury  to  the  public  interest."  '^ 

Parliament  Avas  re-assembled  on  the  18th  September.  Minis- 
ters, however,  would  not  consent  to  abate  the  claims  of  the 
Assembly  to  include  the  proposed  grant  to  Lady  Darling  as 
an  item  in  tlie  appropriation  bill ;  and  the  govei-nor  did  not 
hesitate  to  recommend  the  concurrence  of  the  Legislative  Coun- 
cil to  this  grant  in  a  special  message  to  that  house.  Other- 
wise, he  refrained  from  interference  in  a  matter  which  ought 
to  be  settled  between  the  two  chambers,  and  which  it  did  not 
belong  to  the  governor  to  determine.  But  the  Council,  on 
the  other  hand,  adhered  to  their  own  opinions,  and  again  re- 
jected the  appropriation  bill,  because  the  obnoxious  grant  was 
inserted  therein.  This  left  ministers  no  alternative  but  to 
advise  a  dissolution  of  parliament  with  a  view  to  a  final  deci- 
sion of  the  people  ujDon  the  question  at  is^ne  between  the  two 
houses. 


' 


^  Commons  Papers,  1867-68,  vol.  xlviii.  pp.  632-654. 
«  Ibid.  pp.  633,  653,  675. 


[ES. 


IMPERIAL  CONTROL  OVER  COLONIAL  GOVERNORS.   115 


I,  as  his 
nations 
II  tinned 

resigna- 
overnor 
irrange- 
cunent 
oufAi  it 
lire  "  to 
itinence 
)ersonal 
,1  party, 
(Inct  in 
rded  by 
and  be 
ntrality 
ith  one 
ally  de- 
by  com- 
f  things 
b  to  the 

Minis- 
s  of  the 
rling  as 
did  not 
e  Coun- 
Other- 
ought 
did  not 
ncil,  on 
ain  re- 
in t  was 
bnt  to 
al  deci- 
the  two 


I 


The  governor  accepted  this  advice.  Had  it  been  possible 
instead  to  try  the  experiment  of  a  change  of  ministry,  with 
any  prospect  of  success,  he  would  not  have  hesitated  to  adopt 
this  course  in  preference.  "  But  the  displacement  of  mi- 
nisters, supported  continuously  by  a  majority  of  the  lower 
liouse,  is  a  step  which  could  not  properly  be  taken  by  the 
governor  without  a  fair  prospect  at  least  of  that  success  by 
which  alone,  as  is  admitted  by  all  constitutional  authorities, 
such  an  exceptional  exercise  of  the  prerogative  can  alone  be 
justified."  But,  under  existing  circumstances,  the  governor 
had  no  reason  to  believe  that  a  change  of  ministry  would 
have  produced  harmony  or  co-operation  between  the  two 
legislative  chambers.'* 

The  prorogation  took  place  on  November  8.  It  would  have 
been  immediately  followed  by  the  dissolution,  but  for  the  ex- 
ceptional circumstance  of  the  impending  arrival  in  the  colony, 
of  his  Royal  Highness  the  Duke  of  Edinburgh,  which  mnde  it 
luidesirable  to  disturb,  by  an  election  contest,  the  joyful  wel- 
come and  unanimous  gratification  of  the  people  in  such  an 
auspicious  event.  The  dissolution  of  parliament  occurred  on 
December  30.  It  resulted  in  the  return  of  a  large  majority 
of  members  in  support  of  the  administration.® 

And  here  it  should  be  stated,  that  the  Legislative  Council 
based  their  repeated  rejection  of  the  appropriation  bill,  which 
included  the  objectionable  grant  to  Lady  Darling,  not  merely 
on  the  ground  that  it  was  an  attempt,  on  the  part  of  the 
Assembl3%  to  coerce  them  to  agree  to  an  extraordinary  expen- 
diture of  which  they  disapproved,  but  also  because,  in  their 
opinion,  no  snch  grant  should  have  been  submitted  to  the 
colonial  parliament,  as  it  was  an  attempt  to  reward  an  impe- 
rial officer  who  had  been  recalled  by  the  Crown  from  his 
government,  and  thereby  a  substantial  evasion  of  the  imperial 
regulations  affecting  public  servants.  This  view  was  an 
implied  condemnation  of  the  action  of  the  governor  in  recom- 
mending tlie  proposed  grant  to  the  consideration  of  parlia- 
ment. The  colonial  secretary,  however,  though  of  opinion 
that  the  regulation  in  question  ought  to  be  upheld  in  its  full 
meaning,  and  that  its  breach  must  be  injurious,  did  not  con- 


d  Commons  Papers,  1867-68,  vol.  xlviii.  pp.  666,  689. 
e  Ibid.  pp.  665,  691. 


ill 


|J5 


W 


116       TARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


Quarrel 
bi'twi'cn 
tUv  Two 


sider  that  the  proposed  grant,  whatever  might  be  thought  bf 
its  polic}'  or  propriety,  was  "  so  clear  and  unmistakable  a  vio- 
lation of  the  existing  rule  as  to  call  for  the  extreme  measure 
of  forbidding  the  governor  to  be  party,  under  the  advice  of 
his  responsible  ministers,  to  tho^e  formal  acis  which  are  neces- 
sary to  bring  the  grant  under  the  consideration  of  the  local 
parliament." '" 

The  new  parliament  was  summoned  to  meet  on  March  13, 
1 8G8 ;  and  ministers  were  prepared  to  recommend  the  inclu- 
Hoiisos  on  siqn,  in  the  estimates  to  be  submitted  by  message  from  the 
Unti'scasu  go^'^'i'^o^'i  0^  the  proposed  grant  to  Lady  Darling;  and  there 
could  be  no  doubt  that  this  vote  when  passed  would  have 
been  included  in  the  appropriation  bill,  and  thus  sent  up  for 
the  concurrence  of  the  other  house.  But,  at  this  juncture,  the 
governor  received  a  despatch  from  the  secretary  of  state,  dated 
January  1,  which,  while  it  expressed  no  disapproval  of  the 
course  hitherto  taken  by  the  governor,  under  the  very  embar- 
rassing circumstances  wherein  he  was  placed,  regretted  that 
the  Legislative  Assembly  should  have  thought  it  advisable 
to  include  in  the  appropriation  bill  a  grant  exceptional  in  its 
character,  and  notoriously  obnoxious  to  a  majority  of  the 
upper  house,  instead  of  sending  up  that  grant  in  a  form  in 
which  it  might  have  been  fully  and  freely  discussed.  And, 
without  positively  directing  the  governor  to  adopt  in  future  a 
different  course,  the  despatch  conveyed  "  the  opinion  of  her 
Mai'^sty's  government  that  the  queen's  representative  ought 
not  to  be  made  the  instrument  of  enabling  one  l)ranch  of  the 
legislature  to  coerce  the  other ;  and,  therefore,  that  [he] 
ought  not  again  to  recommend  the  vote  to  the  acceptance  of 
the  legislature,  under  the  fifty -seventh  article  of  the  Constitu- 
tion Act,  except  on  a  Cicar  understanding  that  it  will  be 
brought  before  the  Legislative  Council,  in  a  manner  which 
will  enable  them  to  exercise  their  discretion  respecting  it- 
without  the  necessity  of  throwing  the  colony  into  confu- 
sion." 8 

The  receipt  of  this  despatch,  and  its  communication  to  the 
governor's  constitutional  advisers,  introduced  a  new  element 


Vf 


*  Commons    Papers,  1867-68,  677.     And  see,  to  the  same  effect, 

vol.  xlviii.  pp.  663,  678.     And  see  the  despatch  of  Feb.  1,  1808  (Jbid. 

Ibid.  1878,  C.  1982.  p.    678),   and    the    debate    in   the 

8  Ibid.  1867-68,  vol.  xlviii.  p.  House  of  Lords,  of  May  8,  1868. 


.; 


s. 

ght  bf 
a  vio- 
easure 
ace  01 
neces- 
3  local 

rch  13, 

inclu- 

3111  the 

I  there 

II  have 
up  for 
ire,  the 
},  dated 

of  the 
embar- 
ed  that 
Ivisable 
1  in  its 
of   the 
form  in 
And, 
uture  a 
of  her 
ought 
of  the 
|it  [he] 
fiiice  of 
institu- 
m\\  be 
which 
|ting  it- 
confu- 

to  the 
element 

le  effect, 

in   the 
1808. 


Darling. 


IMPERIAL  CONTROL  OVER  COLONIAL  GOVERNORS.       117 

of  difficulty  into  the  question  at  issue.  Ministers  had  pledged  Proposed 
themselves  to  their  constituents  to  insist  on  the  exclusive  Lady 
riglits  of  the  Assembly,  in  matters  of  finance ;  and  tliey  re- 
sented any  attempt,  on  the  part  of  the  imperial  govennnent, 
to  abridge  the  discretion  of  the  Assembly  as  to  the  form  of  its 
grants  to  the  Crown  as  a  departure  from  the  previous  under- 
standing, "  that  the  controversy  must  be  locally  decided." 
While  ministers  were  prepared  to  admit  that  no  course  coer- 
cive of  the  other  house  "  should  be  taken  by  the  Assem- 
bly wliich  is  not  necessary  for  the  maintenance  of  its  rightful 
control  over  all  matters  of  public  finance,  and  which  would 
not  be  taken  by  the  House  of  Commons  in  the  like  case,  they 
are  bound  to  dechire  that  the  interference  of  the  Crown,  in  a 
matter  so  completely  witliin  the  discretion  of  the  Assembly  as 
the  form  of  a  bill  of  supply,  cannot  be  justified  by  precedent, 
and  threatens  the  existence  of  responsible  government  in  this 
country."  And,  inasmuch  as  it  appeared  that  the  governor 
would  not  feel  it  consistent  with  his  duty  to  the  Crown  to 
accept  the  advice  of  his  ministers  upon  the  subject  of  the 
grant  to  Lady  Darling,  without  an  understanding  that,  if  the 
appropriation  bill  be  rejected,  it  shall  not  again  be  submitted 
in  that  form  to  the  Council,  ministers  decided  to  resign.  His 
Excellency  accepted  their  resignation,  and  then  put  himself 
into  communication  successively  with  various  gentlemen,  — 
all  of  the  opposite  political  party.  These  negotiations  failed, 
because  the  governor  would  not  pledge  himself  beforehand  to 
grant  them  a  dissolution,  under  certain  hypothetical  condi- 
tions. The  governor  then  sought  the  help  of  a  former  sup- 
porter of  the  retiring  administration,  who  undertook  to 
construct  a  new  ministry.^  This  attempt  likewise  failed. 
But  afterwards,  Mr.  Sladen  was  induced  to  accept  the  trust ; 
and  he  succeeded.  He  took  office  with  the  understanding- 
that  the  views  entertained  by  the  secretary  of  state,  with 
respect  to  the  form  in  which  the  proposed  grant  should  be 
submitted  for  the  approbation  of  the  Legislative  Council, 
should  be  carried  out,  and  that  the  grant  should  be  embo- 
died in  a  separate  bill,  and  not  included  in  the  appropriation 
act. 

The  policy  of  the  Sladen  administration  was  exemplified  in 


!:lti 


^  Commons  Papers,  1867-68,  vol.  xlviii.  695. 


[ 


II 


118       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

the  tenor  of  the  speech  from  the  throne  upon  t!ie  opening 
of  parliament  on  May  29,  1868,  wherein  ministers  liad  re- 
frained from  advising  any  recommendation  in  regard  to  the 
grant  to  Lady  Darling  to  be  included.  But  the  supporters  of 
the  late  administration  determined  at  once  to  take  the  sense  of 
the  Assembly  upon  the  constitutional  question  involved  in  this 
new  policy,  by  moving  an  amendment  to  the  address  in  answer 
to  the  speech,  which,  after  recapitulating  the  facts  of  the  case, 
declared  that  the  proposal  of  her  Majesty's  imperial  auvisers, 
above-mentioned,  upon  a  question  which  they  had  admitted 
"  must  be  locally  decided."  was  a  violation  of  the  constitu- 
tional rights  of  the  Legislative  Assembly,  and  a  dangerous 
infringement  of  the  fundamental  principles  of  responsible 
government ;  and,  furthermore,  asserting  that  the  Assembly 
reserved  for  its  own  determination  the  question  of  the  form 
of  the  grant  to  Lady  Darling,  and  would  withhold  its  confi- 
dence from  any  Tninistry  that  would  not  give  full  and  im- 
mediate effect  to  its  decision  in  respect  to  that  grant.  This 
amendment  was  agreed  to,  and  embodied  in  the  address  to  the 
governor.  In  rei)ly,  his  Excellency  pointed  out  that  he  was 
bound  to  adhere  to  his  instructions  from  the  Crown  ;  but  that 
he  had  not  been  required,  and  had  no  desire,  to  interfere  with 
the  constitutional  right  of  the  Assembly  to  choose  the  form  in 
which  they  would  submit  to  the  Council  the  result  of  their 
deliberations  in  any  matter  of  supply.  Recognizing  that  this 
question  ought  to  be  locally  decided,  and  in  pursuance  of  his 
instructions  to  observe  a  neutral  position  in  this  controversy 
between  the  two  houses,  the  governor  was  prepared  to  acqui- 
esce in  any  settlement  of  the  question  that  could  receive  the 
concurrence  of  the  three  branches  tf  the  legislature. 

Accepting  this  assurance  from  the  governor,  the  Assembly, 
nevertheless,  on  June  9,  1868,  voted  a  want  of  confidence  in 
the  new  ministry,  —  because  they  had  not  as  yet  informed  the 
house  that  they  were  prepared  to  advise  an  immediate  grant 
to  Lady  Darling,  and  because  they  had  refused  to  support  the 
inclusion  of  such  a  grant  in  the  appropriation  bill.  This  vote 
caused  the  resignation  of  the  Sladen  nr'aistry,  and  the  return 
to  power  of  Mr.  McCulloch. 

Fortunately,  at  this  juncture,  this  protracted  controversy 
was  terminated  by  the  act  of  Sir  C.  Darling  himself,  who 
sought  and  obtained  permission  from  the  secretary  of  state  to 


IKS. 


IMPERIAL  CONTROL  OVER  COLONIAL  GOVERNORS.       119 


opening 
had  re- 
l  to  the 
jrters  of 
sense  of 
1  in  this 
I  answer 
the  ease, 
luvisers, 
idniitted 
Donstitu- 
ingeroiis 
;pousible 
Assembly 
the  form 
its  confi- 
and  im- 
it.     This 
jss  to  the 
it  he  was 
but  tluit 
fere  Avith 
form  in 
of  their 
that  this 
ce  of  his 
itroversy 
to  acqui- 
3eive  the 

ssembly, 
idence  in 
rmed  the 
^te  grant 
pport  the 
This  vote 
le  return 

itroversy 
self,  who 
;  state  to 


I 


withdraw  his  relinquishment  of  the  colonial  service  of  the 
Crown,  on  the  ground  that  he  had  been  under  a  misapprehen- 
sion as  to  the  views  entertained  by  her  Majesty's  government, 
in  regard  to  the  acceptance  by  Lady  Darling  of  the  proposed 
grant,  after  he  should  have  retired  from  the  public  service. 
This  unqualified  and  unconditional  withdrawal  of  his  previous 
decision  justified  the  imperial  government  in  conferring  upon 
Sir  C.  Darling  a  retiring  allowance  as  an  ex-gf)vernor.  But, 
as  a  condition  upon  the  acceptance  of  this  withdrawal,  Sir 
C.  Darling  was  required  to  write,  for  the  information  of  tlie  End  of  tlie 
Victoria  government,  a  letter  intimating  his  inability,  under  "^''^^''^^  ■ 
these  circumstances,  to  accept  either  for  himself  or  his  wife 
the  proposed  grant  of  twenty  thousand  pounds.  This  corre- 
spondence was  laid  before  the  Victoria  Parliament ;  wlierepon, 
the  long-continued  dead-lock  between  the  two  houses  came  to 
an  end.' 

In  a  debate  in  the  House  of  Lords  upon  this  question,  which 
took  place  on  May  8,  18G8,  just  before  it  was  brought  to  a 
happy  termination,  the  secretary  of  state  was  blamed,  by  some 
eminent  statesmen,  for  not  having  interposed  to  prevent  the 
governor  from  allowing  the  vote  to  be  submitted  to  the  legis-  Ci^^or- 

'-'  .  nor  s  c'on- 

lature  ;  at  any  rate,  as  a  part  of  the  bill  of  supply.  But,  diut  <hk's- 
practically,  the  governor  would  have  been  powerless  to  en- 
force such  a  restriction,  in  the  face  of  the  great  preponde- 
rance of  opinion  in  favour  of  the  grant,  both  in  the  Assembly 
and  in  the  country  generally.  The  first  stage  in  the  pro- 
ceedings at  which  the  governor  could  have  suitably  inter- 
posed to  prevent  any  such  grant,  in  a  question  of  this  kind, 
was  after  the  bill,  which  he  formally  initiated,  had  passed 
both  houses.  He  might  then,  under  his  instructions,  have 
reserved  the  bill  for  the  consideration  of  the  Crown,  as  it 
involved  a  principle  affecting  one  wlio  had  served  as  an  impe- 
rial officer,  and  in  that  capacity  had  ingratiated  himself  with 
the  supporters  of  the  measure.     But  if,  in  the  first  instance, 


tl 


tioiu'd  ill 
Iinpt'i-ial 
Parlia- 
lucnt. 


'  Commons  Papers,  1867-68, 
vol.  xlviii.  pp.  U95-704.  Victoria 
Leg.  Council  Journals,  1868,  p. 
105,  appx.  A.  1.  Leg.  Assembly- 
Votes  and  Proc.  1868,  vol.  i.  appx. 
B.  Sir  C.  Darling  was  afterwards 
allowed  a  civil  service  pension  of 
£1,000    per    annum,   commencing 


from  Oct.  24,  1860.  But  in  Janu- 
ary, 1870,  he  died.  The  Victoria 
parliament  then,  upon  a  message 
from  the  governor,  passed  an  act, 
conferring  a  pension  of  £1,000  per 
annum  upon  his  widow,  and  making 
provision  for  his  four  orphan  chil- 
dren.    Acts  1870,  uo.  362. 


I 


i'ti 


I 


Confidon- 
tial  de- 
spatches 
on  thia 
case. 


120      PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

the  governor  had  resorted  to  his  extreme  right  of  forbid- 
ding the  initiation  of  the  vote,  he  would  have  turned  the 
dispute  from  a  constitutional  issue  raised  between  the  legis- 
lative chambers,  as  to  the  appropriate  limits  of  their  respec- 
tive powers  and  privileges,  —  which  shape  it  finally  assumed, 
—  into  a  deplorable  contest  between  the  colony  and  the 
Crown.  J 

In  the  Commons,  early  in  May,  1868,  Sir  Roundell  Palmer 
gave  notice  of  a  vote  of  censure  upon  the  government  for 
perinitting  the  governor,  notwithstanding  Sir  C.  Darling's 
retirement  from  the  service,  to  sanction  the  initiation  of  a 
pecuniary  grant  in  his  favour.  The  principle  intended  to  be 
asserted  in  this  motion  was,  that  grants  of  money  to  retiring 
governors  of  colonies,  by  colonial  assemblies  Cunless  proposed 
with  the  spontaneous  approval  of  the  Crown,  on  grounds  of 
public  service,  recognized  as  exceptional  and  meritorious  by 
the  Crown  as  well  as  by  the  Assembly),  are  not  only  incon- 
sistent with  the  regulations  of  the  service,  but  are  subversive 
of  the  true  relations  between  the  colonies  and  the  empire, 
and  ought  under  no  circumstances  whatever  to  be  allowed. 
This  motion  was  postponed  for  a  time,  and,  after  the  settle- 
ment of  the  case  aftfecting  Sir  C.  Darling,  was  dropped.  But 
the  principle  is  obviously  sound,  ai:d  being  advocated  by  so 
eminent  a  constitutional  authority  as  Sir  Roundell  Palmer, 
quite  independently  of  the  personal  question  affecting  Sir  C. 
Darling,  would  doubtless  have  been  endorsed  by  the  House 
of  Commons.*^ 

In  conclusion,  it  may  be  observed  that  further  light  has 
been  recently  thrown  upon  this  tase,  so  important  and  in- 
structive in  many  points  of  view,  by  the  publication,  specially 
authorized  by  government,  of  certain  confidential  despatches 
from  Governor  Manners  Sutton  to  the  secretary  of  state, 
written  between  July  26,  1867,  and  Aug.  16,  1868.1 

From  these  despatches,  it  appears  that  the  governor  —  in 
the  absence  of  definite  instructions  as  to  the  course  he  ought 
to  pursue  with  respect  to  the  proposed  grant  to  Lady  Dar- 
ling—  succeeded  in  inducing  the  McCulloch  ministry  to  post- 


i  See  Adderley,  Colonial  Policy,         '   See    Victoria    Lojr.    Assembly 

p.  112.  Votes  and  I'roc.  1878,  vol.  i.  ai)i>x. 

^  Commons    Papers,    1867-68,  B.  no.    15;  and  Connnons  Papers, 

vol.  xlviii.  p.  70L  1878,  C.  217:^  pp.  ]0;M13. 


i  ' 


IMPERIAL  CONTROL  OVER  COLONIAL  GOVERNORS.       121 

pone  the  tender  to  him  of  any  advice  thereupon,  so  long  as 
Sir  Charles  Darling  remained  in  the  colonial  service.  But 
ministers  yielded  this  point  very  reluctantly,  fearing  their 
inability  to  hold  their  supporters  —  the  majority  in  the  As- 
sembly —  in  check.  When  Sir  Charles  formally  relinquished 
the  service  of  the  Crown,  ministers  insisted  upon  proposing 
a  measure  to  reward  him  (through  his  wife)  for  his  past  ser- 
vices. The  governor  was  aware  that  the  Legislative  Council 
disapproved  of  the  proposal,  but  he  knew  that  it  was  very 
popular  with  the  Assembly  and  in  the  country ;  and  that  if 
he  appealed  from  his  ministers  and  from  the  Assembly,  as  he 
was  entitled  to  do,  such  an  act  would  be  the  signal  for  an 
overpowering  manifestation  of  popular  feeling  in  favour  of 
ministers,  if  not  of  the  grant;  and  the  result  of  a  general 
election  would  have  been  to  leave  him  powerless  in  the  hands 
of  a  majority,  who  would  consider  him  as  an  aggressor,  and 
as  a  beaten  foe. 

Moreover,  the  governor  could  not  but  confess  that,  without 
undervaluing  the  status  of  the  Legislative  Council,  they  were, 
in  their  persistent  opposition  to  this  grant,  asserting  a  claim 
which  the  House  of  Lords,  under  similar  circumstances,  would 
not  have  preferred.  The  legitimate  exercise  of  the  legal  rights 
of  a  Legislative  Council  should  be  defined  by  the  practice, 
rather  than  by  the  abstract  claims  or  undefined  powers,  of  the 
House  of  Lords.  Admitting  that  the  Legislative  Council  was 
justified,  by  their  opinion  of  the  abstract  demerits  of  the  grant 
to  Lady  Darling,  to  oppose  it,  so  long  as  they  could  do  so 
consistently  with  a  due  regard  to  the  maintenance  of  law  and 
order,  yet  it  was  of  the  highest  importance  that  they  should 
not  over-estimate  or  miscalculate  their  power  of  resistance. 
The  governor  believed  that  their  3ontinued  resistance  to  the 
grant  would  lead  to  a  popular  demand  to  supersede  or  ignore 
their  authority,  as  an  independent  branch  of  the  legislature, 
to  which  ministers  would  be  apt  to  yield,  and  which  would 
involve  the  governor,  and  ultimately  the  imperial  govern- 
ment, in  a  confiict;  and  probably  endanger  the  relations  of 
the  colony  with  the  mother  country.  He  therefore  eagerly 
availed  himself  of  every  opportunity  —  by  inculcating  mo- 
deration between  the  contending  parties,  and  by  enforcing 
delay  —  to  mitigate  the  pressure  of  the  Assembly  on  the 
Legislative  Council,  and  to  afford  to  the  latter  an  opening 


ji 


Rule  con- 
cc'rninj» 
Presents 
furtlicr 
consi- 
dered. 


122      PARLIAMENTARY  GOVERNMENT  IN  THE   COLONIES. 

for  a  dignified  retreat.  He  even  made  full  inquiries  (not 
limited  to  members  of  his  ministry),  as  to  whether  a  cluinge 
of  ministry  could  induce  the  house  to  pass  the  proposed 
grant  in  a  separate  bill,  instead  of  including  it  in  the  supply 
bill.  But  he  found  such  a  course  to  be  impracticable.  He 
had  accordingly  agreed  —  as  the  most  considerate  step  yet 
open  toward  the  Legislative  Council  —  to  the  grant  being 
inserted  in  the  appropriation  act.  Both  Houses  were  un- 
doubtedly disi)osed,  on  this  occasion,  to  press  their  respective 
rights  and  privileges  to  extremity.  But  the  Assembly  were 
sustained  by  the  constituent  body,  who,  as  was  unmistakably 
shown  by  the  result  of  the  general  election  in  18G8,  were 
decidedly  adverse  to  any  concession  to  tlie  l.<egislative  Coun- 
cil upon  this  question.  If,  under  these  circumstances,  the 
Council  had  proved  stubborn  and  impracticable,  the  prolon- 
gation of  the  controversy  between  tlie  two  houses  would 
undoubtedly  have  strengthened  the  extreme  democratic  party, 
and  led  to  disastrous  results. 

We  are  therefore  free  to  admit  that,  under  circumstances 
of  unparalleled  difficulty,  Governor  Manners  Sutton  acted  in 
a  most  exemplary  and  statesmanlike  manner,  combining  firm- 
ness with  moderation,  and  evincing  a  thoughtful  regard  for 
the  interests  of  all  who  were  concerned  in  the  issue  of  the 
struggle. 

We  must  now  revert  to  the  further  consideration  of 
the  rule  forbidding  the  acceptance  of  Presents  by  go- 
vernors from  the  inhabitants  of  the  colony  over  which 
they  preside. 


Sir  W. 


case 


!i 


In  January,  1855,  upon  the  retirement  of  Sir  William  Deni- 
Denison's  gon  from  the  governorship  of  Van  Diemen's  Land,  and  Ids 
j)romotion  to  be  governor  of  New  South  Wales,  the  sum  of 
two  thousand  pounds  was  subscribed  by  the  people  of  the 
colony,  to  purchase  a  large  silver  centre-piece  for  a  dining- 
table,  to  be  presented,  as  a  testimonial  of  regard  for  his  public 
services,  to  Sir  William.  Upon  Ids  reporting  this  circum- 
stance to  the  secretary  of  state,  objections  were  made  to  the 
receipt,  by  an  out-going  governor,  of  any  testimonial  from 
the  people  ;  and  it  was  with  considerable  dilllculty  that  the 
colonial  secretary  was  induced  to  permit  Sir  W.  Denison  to 


a 

fi 


IMPERIAL  CONTROL  OVER  COLONIAL  GOVERNORS.       123 


being 


accept  this  gift.  But  his  Excellency  called  attention  to  the 
fact  that,  within  his  own  knowledge,  other  governors  had 
received  testimonials  under  similar  circumstances ;  and  inas- 
much as  they  had  not  thought  it  needful  to  report  the  same 
to  the  colonial  secretary,  the  transaction  had  passed  without 
observation."^  Since  the  date  of  this  occurrence,  as  we  have 
already  noticed,  a  stricter  rule  has  been  enforced  in  regard  to 
such  matters." 

Moreover,  by  chapter  xvii  of  the  Rules  and  Regula- 
tions for  her  Majesty's  Colonial  Service  (ed.  1879),  go- 
vernors, lieutenant-governors,  and  all  other  servants  of 
the  Crown  in  a  colony,  are  prohibited  from  receiving  pre- 
sents offered  for  their  personal  acceptance  by  kings, 
chiefs,  or  other  members  of  the  native  population,  in 
or  neighbouring  to  such  colony.  When  such  presents 
cannot  be  absolutely  refused  without  giving  offence, 
they  are  to  be  delivered  up  to  the  government.  No 
exception  to  this  rule  is  allowed,  unless  with  the 
express  sanction  of  the  secretary  of  state.  Presents 
received  in  exchange,  in  ceremonial  intercourse  with 
native  chiefs,  &c.,  must  be  credited  to  the  govern- 
ment, and  such  return  presents  as  may  be  sanctioned 
by  the  secretary  of  state  will  be  given  at  the  govern- 
ment expense. 

In  1871,  Sir  George  F.  Bowen,  who  was  then  governor  of   sirG. 

New  Zealand,  whilst  on  a  tour  of  observation  through  the  l^i>wen'8 

cusc* 
colony,  was  proffered,  as  a  memento  of  his  visit  to  the  pro- 
vince of  Otago,  a  beautiful  work  of  art^  carved  in  stone,  by 
a  native  artist.  It  represented  "  the  Moka  bird,  mourning 
the  death  of  the  Wax-eye,"  and  was  adorned  with  figures  of 
ferns  and  creeping  plants  in  the  background.  But  his  Ex- 
cellency, though  very  sensible  of  the  compliment  to  himself, 
refused  to  take  the  donation  as  a  i)ersonal  gift ;  deeming  it 
to  be  "  unusual  and  improper  for  governors  of  colonies  to 
accept  such  valuable  presents  for  their  own  use  and  advan- 


•"  DtMiison,  Vice-Regal  Life,  vol.  i.  p.  274. 
°  JSeo  ante,  p.  UL 


i 


124       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


I 


All  British 
officials 
forbidden 
to  receive 
Presents. 


As  to  lieu- 
tenant go- 
vernor of 
Canadian 
Provinces. 


tage."  Nevertheless,  with  the  consent  of  the  donor,  he  under- 
took that  it  should  be  deposited  in  the  government  Jiouse,  as 
public  property,  and  as  a  lasting  memorial  of  interest  to  the 
colonists  and  to  visitors  from  abroad.  For  it  had  always 
been  his  opinion  that  "  the  government  house  should  illus- 
trate the  natural  products  and  resources  of  the  colony,  and 
the  advance  of  its  inhabitants  in  the  useful  and  ornamental 
arts."  " 

This  wholesome  rule,  it  may  be  observed,  has  been 
further  extended  and  applied  by  the  imperial  govern- 
ment to  subordinate  officials  throughout  the  British 
Empire,  and  especially  in  India,  where,  formerly,  a  lax- 
ity of  practice  in  this  particular  had  given  rise  to  much 
abuse  and  corruption.^  In  1703,  a  law  was  passed, 
which  is  still  in  force,  to  forbid  the  receiving  by  any 
governor,  or  other  person  in  public  employ  in  India, 
any  present,  either  directly  or  indirectly,  under  any 
colour  or  j^retext.  Offences  against  this  act  are  pun- 
ishable, as  extortions  and  misdemeanors,  by  severe 
penalties,  and  by  the  forfeiture  to  the  Crown  of  the 
gift  or  its  full  pecuniary  value.''  It  is  a  rule,  in  fact, 
of  universal  application  to  all  state  functionaries,  of 
whatever  grade  or  rank,  in  the  service  of  the 
Crown."^ 

In  regard  to  the  application  of  this  rule  to  lieutenant- 
governors  of  the  provinces  in  the  dominion  of  Canada, 
the  secretary  of  state  for  the  colonies,  in  a  despatch 
dated  May  8, 1 869,  observes  that,  "  while  the  governor- 
general  is  not  at  liberty  to  sanction  the  passing  of  a 
law  making  any  donation  or   gratuity  to  himself,**  it 


o  Cominons  Papers,  1872,  vol. 
xliii.  p.  0(14. 

p  Mr.  Disraeli,  Hans.  Deb.  vol. 
ccxxv.  p.  1146. 

•J  Lord  Chancellor  Cairns,  Hans. 


vol.  i.  p.  1.30.  Law  Times,  vol.  Ixii. 
p.  1()4,  citing  C.  J.  Cockburn,  in 
Morison  i;.  Thompson,  Law  Re- 
ports, n  Q.  B.  481. 

Royal  Instriictions  to  Lord  Duf- 


Deb.   vol.  cxci.  p.   1!)88.     Act  33,    ferin,  as  governor-general  of  Can- 
Geo.  TIL  c.  .'I'i,  sees.  (52,  fi3.  ada,  no.  9. 

■■  {See  Ashley,  Life  of  I'almerston, 


SI 
P] 

ai 


IMPERIAL  CONTROL  OVER  COLONIAL  LEGISLATION.      125 

would  be  for  his  ministers  to  consider  whether  they 
should  advise  him  to  consent  to  a  donation  by  the 
province  to  the  lieutenant-governor,  and  he  would  be 
at  liberty  to  follow  that  advice."  ^ 


Imperial  Dominion  exercisable  over  Self-governing  Colonies  : 
b.  In  matters  of  local  legislation. 

The  right  of  the  Crown,  as  the  supreme  executive 
authority  of  the  empire,  to  control  all  legislation  which 
is  enacted  in  the  name  of  the  Crown,  in  any  part  of 
the  queen's  dominions,  is  self-evident  and  unquestion- 
able. 

In  the  mother  country,  the  personal  and  direct  exer-  Royal 
cise  of  this  prerogative  has  fallen  into  disuse.     But  J4ishi" 
eminent  statesmen,  irrespective  of  party,  and  who  re-  *'""■ 
present  the  ideas  of  our  own  day,  have  concurred  in 
asserting  that   "  it  is  a  fundamental  error  to  suppose 
that  the  power  of  the  Crown  to  reject  laws  has  conse- 
quently ceased  to  exist."    The  authority  of  the  Crown, 
as   a   constituent   part   of  the   legislative   body,   still 
remains ;  although,  since  the  establishment  of  parlia- 
mentary goverunient,  the  prerogative  has  been  consti- 
tutionally exercised  in  a  different  way." 

But,  in  respect  to  the  colonies,  the  royal  veto  its  active 
upon  legislation  has  always  been  an  active  and  not  thecoio-' 
a  dormant  power.  The  reason  of  this  is  obvious. 
A  colony  is  but  a  part  of  the  empire,  occupying  a 
subordinate  position  in  the  realm.  No  colonial  legis- 
lative body  is  competent  to  pass  a  law  which  is  at 
variance  with,  or  repugnant  to,  any  imperial  statute 
which   extends,   in   its    operation,   to    the    particular 


uies. 


*  Caiada  Sess.  Papers,  1870,  no.     pp.  310-310,  anl  Earl  Granville's 
35,  p.  26.  remarks,  in   Hans.   Deb.    vol.  cxl. 

"  See  Todd,  Tarl.  Govt.  vol.  ii.     p.  '284. 


/.: 


•  I 


f 


^l> 


i  !  1 


126       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

colony.^  Neither  may  a  colonial  legislature  exceed 
the  bounds  of  its  assigned  jurisdiction,  or  limited  pow- 
ers. Should  such  an  excess  of  authority  be  assumed,  it 
becomes  the  duty  of  the  Crown  to  veto,  or  disallow,  the 
illegal  or  unconstitutional  enactment.  This  duty  should 
be  fulfilled  by  the  Crown  without  reference  to  the  con- 
clusions arrived  at,  in  respect  to  the  legality  of  a  par- 
ticular enactment,  by  any  legal  tribunal.  It  would  be 
no  adequate  protection  to  the  public,  against  erroneous 
and  unlawful  legislation  on  the  part  of  a  colonial 
legislature,  that  a  decision  of  a  court  of  law  had 
pronounced  the  same  to  be  ultra  vires.  An  appeal 
might  be  taken  against  this  decision,  and  the  question 
carried  to  a  hii»;her  court.  Pendino;  its  ultimate  deter- 
mination,  the  public  interests  might  suffer.  There- 
fore, whenever  it  is  clear  to  the  advisers  of  the  Crown 
that  there  has  beea  an  unlawful  exercise  of  power  by  a 
legislative  body,  it  become  their  duty  to  recommend 
that  the  royal  prerogative  should  be  invoked  to  annul 
the  same. 

The  Crown,  moreover,  is  the  chief  executive  autho- 
rity of  the  empire,  and  the  'nstrument  for  giving  effect 
to  the  national  will,  as  the  same  has  been  embodied  in 
acts  of  the  Imperial  Parliament,  or  sanctioned  by  Par- 
liament, ikpon  the  advice  of  responsible  ministers.  It 
is  the  proper  function  of  the  Crown^  therefore,  to 
uphold  and  enforce  the  national  policy  throughout 
the  realm  ;  save  only  in  so  far  as  rights  of  local  self- 
government  may  have  been  conceded  to  any  portion 
thereof. 

Furthermore,  the  Crown  occupies,  towards  the  colo- 
nial dependencies  of  the  empire,  a  paternal  relation ; 
which,  at  least  in  the  earlier  stages  of  their  political 
existence,  justifies  and  requires  that  the  mature  expe- 


'  See  Merivale,  Of  the  Colonies,  p.  G62.     And  see  post,  p.  138. 


IMPERIAL  CONTROL  OVER  COLONIAL  LEGISLATION.       12T 


rience  and  enlarged  political  insight  of  the  statesmen 
who  guide  public  affairs  in  the  mother  country  should 
be  utilized  to  the  benefit  of  their  fellow-subjects  in 
the  colonies,  while  they  .are  gradually  attaining  to  a 
knowledge  of  the  practical  business  of  legislation  in 
their  limited  sphere.  This  will  oftentimes  necessitate 
the  directing  hand  of  imperial  statesmanship,  to  correct 
and  regulate  immature  and  unwise  attempts  at  legisla- 
tion, such  as  has  occasionally  proceeded  from  colonial 
legislatures  before  they  had  acquired  the  requisite 
knowledge  and  experience  to  enable  them  to  discharge 
their  responsible  duties  aright. 

Upon  these  grounds,  it  is  impossible  to  gainsay  the 
great  public  advantage  which  results  from  the  pos- 
session by  the  Crown  of  the  veto  power.  It  is  evident 
that  the  prerogative,  by  virtue  of  which  the  Crown  is 
authorized  to  supervise  and  control  the  acts  of  all  sub- 
ordinate legislatures  throughout  the  empire,  is  held  for 
the  especial  benefit  of  the  colonies,  as  well  as  for  the 
security  of  the  nation  at  large. 

In  the  case  of  colonies  having  responsible  govern- 
ment, this  right  of  veto  is,  however,  very  sparingly 
exercised.  Wherever  that  system  has  been  introduced, 
her  Miijesty's  government  has,  as  a  general  rule,  re- 
frained from  interfering  with  colonial  legislation ;  except 
in  cases  specified  in  the  royal  instructions  to  the  go- 
vernors, which  almost  exclusively  refer  to  matters  of 
imperial  relation,  and  not  of  mere  local  concern. '''     But, 


"  See  Hans.  Deb.  vol.  cxxii.  p. 
9U  ;  vol.  cxxiv.  pp.  562,  57'),  717. 
Canada,  Ses.siou  Papens,  1869,  no. 
18.  Lord  Norton'  paper,  "  How 
not  to  retain  the  Colonies,"  in  the 
"  Nineteentii  Century"  for  July, 
1879  The  present  writer  has  not 
been  able  to  obtain  precise  informa- 
tion in  respect  to  the  exercise  of  the 
prerogative  of  disallowance,  in  the 
case  of  bills  passed  in  the  Australian 


Ronoficial 
fftVct  of 
royal  vt'to 
on  colo- 
nial legis- 
lation. 


Sparingly 
exercised 
lunler  rc- 
si)onsihle 
govern- 
ment. 


colonies.  Year  b  year,  however, 
in  New  South  Wales  and  adjacent 
colonies,  bills  are  reserved  for  the 
signifieation  of  her  Majesty'.s  plea- 
sure thereon.  But  it  is  not  easy  to 
trace  the  subsetpient  fate  of  these 
measures.  The  Index  to  the  Tas- 
mania .statutes,  printed  in  187G, 
mentiDns  three  acts  only  of  tliat 
colony  as  beinar  disallowed,  between 
18U;3  and  1875:  viz.,  the  Offender's 


i: 


128       TAELTAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


I  ; 


l!  .; 


if  lior  Majesty's  ministers  should  be  of  opinion  that 
any  constitutional  principle,  was  infringed  by  a  colonial 
enactment  it  would  be  their  duty  to  advise  that  the 
royal  veto  should  be  put  upon  it ;  and  they  ought  not 
to  shrink  from  the  performance  of  that  duty  for  fear  of 
possible  consequences,  in  disturbing  harmonious  rela- 
tions between  the  colony  and  the  mother  country." 

Since  the  concession  of  responsible  government  to  the 
principal  colonies  of  Great  Britain,  as  well  as  formerly, 
the  imperial  government,  while  seldom  resorting  to 
the  extreme  measin-e  of  disallowing  colonial  acts,  has 
repeatedly  pointed  out,  in  despatches  from  the  secretary 
of  state  for  the  colonies  to  the  governor  of  the  colony, 
errors,  defects,  or  omissions,  in  colonial  laws,  which  re- 
quired to  be  remedied  by  further  legislation  ;  ^  and  has 
cautioned  the  colonial  government  as  to  the  spirit  in 
which  certain  exceptional  powers,  granted  by  a  colonial 
act,  which  had  been  approved  by  the  imperial  govern- 
ment, should  be  made  use  of,  so  as  to  avoid  abuse  or 
oppression  ^  In  this  way,  the  paternal  oversight  of  her 
Majesty's  government  has  frequently  been  exercised, 
for  the  b  ^nefit  of  the  colonies,  without  encroaching  upon 
the  rights  of  local  self-government. 

Subject,  however,  to  the  constitutional  oversight  and 
discretion  of  the  Crown  —  by  which  all  colonial  legisla- 
tion is  liable  to  be  controlled  and  annulled,  if  exercised 
unlawfully  or  to  the  prejudice  of  other  parts  of  the 


runishment  Act,  of  18G3  ;  the  Go- 
vernor's Salary  Reduction  Act,  of 
1868  ;  and  the  Intercolonial  Free 
Trade  Act,  of  1870.  Full  particu- 
lars in  reqard  to  the  disallowance 
of  Canadian  statutes,  since  the  es- 
tablishment of  responsible  govern- 
ment in  Canada,  will  be  found  in  a 
later  jiart  of  this  section 

^  Earl  of  Carnarvon,  Hans.  Deb. 
vol.  cxci.  p.  1983.  And  see  his 
lordship's  despatch  to  the  governor 


of  Queensland,  of  March  27,  1877, 
post,  p.  155. 

y  See  Canadian  precedents,  in 
Canada  Assembly  Journals,  1843, 
p.  47.  Ihld.  1847  (appx.  W.)  ; 
1848,  p.  45  ;  1849  (appx.  N.)  ; 
and  1851  (appx.  ZZ.).  For  pre- 
cedents in  other  British  North 
American  colonies,  see  Commons 
Papers,  1864,  vol.  xl.  pp.  090-708. 

'  Canada  Assembly  Journals, 
1866,  p.  292. 


I 


t. 


i 


IMPERIAL  CONTROL  OVER  COLONIAL  LEGISLATION.       129 


t  and 
legisla- 
Tcised 

f  the 

1877, 

knts,    in 
,  1843, 
W.)  ; 

N.); 

lor  pre- 

North 

kmmons 

)()-708. 

lurnals, 


empire,  —  complete  powers  of  legislation  appertain  tc 
all  duly  constituted  colonial  governments.  Every  local 
legislature, —  whelber  created  by  charter  from  the  cliUnfa? 
Crown,  or  by  imperial  statute  —  is  clothed  with  supreme  Jjuthorit^^ 
authority,  within  the  limits  of  the  colony,  to  provide 
for  the  peace,  order,  and  good  government  of  the  in- 
habitants thereof  *  This  supreme  legislative  authority 
is  subject,  of  course,  to  the  paramount  supremacy  of 
tbe  Imperial  Parliament  over  all  minor  and  subordinate 
legislatures  within  the  empire.  The  functions  of  control 
exercisable  by  the  imperial  legislature  are  practically 
restrained,  however,  by  the  operation  of  certain  consti- 
tutional principles  hereafter  to  be  considered.  Mean- 
while, it  may  suffice  to  observe  that  the  right  of  local 
self-government  conceded  to  all  British  colonies  wherein 
representative  institutions  have  been  introduced,  con- 
fers upon  the  local  legislature,  with  the  co-operation 
and  consent  of  the  Crown,  as  an  integral  part  of  such 
institutions,  ample  and  unreserved  powers  to  deliberate 
and  determine  absolutely  in  regard  to  all  matters  of 
local  concern. 

In  the  event  of  a  colonial  legislature  assuming  to  ex- 
ercise powers  in  excess  of  its  lawful  competence,  and 
in  case  the  Crown  has  not  interposed  to  annul  such  un- 
lawful acts,  application  could  be  made  to  the  courts  cf 
law  within  the  colony,  to  decide  upon  the  proper  limits 
of  the  jurisdiction  belonging  to  the  legislature  in  the 
particular  instance.  ^  Such  occasions  of  judicial  inter- 
ference are,  however,  of  rare  occurrence,  save  only 
under  the  Canadian  constitution.  The  dominion  of  Ca- 
nada comprises  a  federal  parliament,  with  minor  pro- 
vincial legislatures,  the  respective  powers  of  which  are 
limited  and  defined  by  the  British  North  America  act  of 


■  Soe  Bavon  Parke's  judgment,  iu  Kielley  v.  Carson,  4  Moore's  Privy 
Conn.  Kep.  85. 

»»  See  post,  p.  375. 

9 


Hi 


130       TAltLIAMENTARY  GOVEKNMENT  IN  THE  COLONIES. 

1867.     In  the  working  of  this  constitution,  questions 
have    frequently  arisen  as  to  the  powers  exclusively 
assigned  either  to  the  dominion  or  provincial  authorities; 
and  the  determination  of  these  questions  has  suitably 
devolved  upon  the  courts  of  law.     But  this  subject  will 
be  separately  discussed  in  another  part  of  this  treatise. 
To  revert   to    'he  question  immediately  before   us; 
namely,  the  exercise  by  the  Crown  of  the  veto  power 
over  colonial  legislation. 
A  povcr-         Under  the  Rules  and  Regulations  for  the  direction  of 
in  respect   her  Majestv's  Colonial  Service,  the  governor  in  every 
to  bills.      colony  has  authority  either  to  give  or  to  withhold  his  as- 
sent to  laws  passed  by  the  other  branches  of  the  legis- 
lature therein,  and  until  that  assent  is  given  no  such 
law  is  valid  or  binding." 

The  royal  instructions  do  not  define  the  precise  time 
and  circumstances  under  which  the  royal  assent  shall 
be  given  to  bills  passed  by  colonial  legislatures,  neither 
do  they  limit  the  action  of  a  governor,  in  the  exercise 
of  this  prerogative,  to  the  usage  of  the  sovereign  in 
the  mother  country.  Ordinarily,  it  has  been  usual  for 
the  governor  to  proceed  to  the  legislative  buildings 
for  such  a  purpose,  and  to  declare  the  royal  pleasure 
upon  bills  passed,  in  presen.>:o  of  the  legislative  bodies. 
But,  sometimes,  it  has  been  deemed  expedient,  even 
during  a  session,  that  the  royal  assent  should  be  made 
known  by  proclamation,'^  a  course  which  is  generally 
adopted  in  the  case  of  bills  reserved  for  the  significa- 
tion of  the  royal  pleasure  thereon. 

Agreeably  to  imperial  usage,*'  it  has  been  customary 


Royal  as- 
sent, how 
given. 


e  Colonial  Rules,  1879,  sec.  48.  of  both  houses."     This  is  a  declava- 

d  See  the  Newfoundland  Assam-  tion  of  Sir  Edward  Coke,  in  1G21, 

bly  Journals,  1801,  pp.  91,  92.  quoted  by  Ilatsell  (vol.  ii.  p.  338), 

*  "  When  bills  have  passed  both  who  .shows   "  that  the  law  of  this 

houses,  the  kind's  loyal  assent  is  realm  is,  and  always  has  been,"  to 

not  to  be  given,  but  either  by  com-  this  effect. 

mission,  or  in  person,  in  presence 


! 


\i. 


IMPERIAL   CONTROL  OVER  COLONIAL   LEGISLATION.        131 


such 


lal  for 

jildings 

easure 

odies. 

even 

made 

e  rally 

nifica- 

)mary 


Ideclava- 

)u  1G21, 

|p.  338), 

of  Ihis 

3en,"  to 


I 


for  the  governor  or  governor-general  in  Canada  to 
attend  in  state  in  the  Legislative  Council  chamber  for 
the  purpose  of  giving  the  royal  assent  to  bills,  in  the 
presence  of  members  of  both  houses,  specially  sum- 
moned to  appear  before  his  Excellency  for  that  purpose  ; 
but  this  practice  is  not  essential/ 

In  several  of  the  Australian  colonies,  a  different  prac- 
tice has  prevailed.  In  New  South  Wales,  in  New  Zea- 
land, and  in  Queensland,  bills,  other  than  bills  of  appro- 
priation, are  as  a  general  rule,  assented  to  by  the  go- 
vernor at  his  official  residence,  or  office,  in  the  presence 
merely  of  the  clerk  of  the  parliaments  ;  and  both 
houses  are  subsequently  notified  thereof  by  message 
under  the  sign-manual. 

In  South  Australia  and  in  Victoria,  it  has  been  i.rual 
to  follow  the  imperial  practice.  But  the  attorney-gene- 
ral of  Victoria  has  advised  that  "  the  governor  can 
legally  and  constitutionally  give  the  royal  assent  at  the 
government  offices,  or  elsewhere,  to  all  bills  (except 
the  apr  ropriation  bill)  presented  to  his  Excellency  by 
the  clerk  of  the  parliaments  for  her  Majesty's  assent." 
"  Such  assent,  however,  should  afterwards  be  notified  by 
message  to  both  houses  of  parliament,  according  to  the 
practice  in  other  colonies."  ° 

Every  colonial  governor,  excepting  the  governor- 
general  of  the  dominion  of  Canada,''  is  directed  by  the 


'  See  the  British  North  America 
Act,  1807,  sec.  55,  which  leaves 
this  question  an  open  one  in  Canada. 
And  see  an  exceptional  instance  in 
Canada,  of  a  contrary  practice,  pro- 
posed,—  owinof  to  the  illness  of  the 
governor, — but  eventually  abar 
doned,  because  of  his  sudden  de- 
cease, and  the  appointment  of  a 
deputy-jTovernor,  who  assented  to 
the  bills  in  the  customary  wsiy. 
Canada  Assembly  Journals,  Sept. 
17  and  18,  1841. 

B  Victoria  Leg.  Council  Journal, 
1877-8,  p.  1G(J.'    But  on  Oct.  10, 


1877,  the  Assembly,  by  resolution, 
authorized  their  speaker  to  present 
the  appropriation  and  loan  bills  to 
the  governor,  for  the  royal  assent, 
at  the  government  house.  And 
this  is  the  customary  practice  in 
Tasmania.  The  parliament  of 
South  Australia  have  adhered  to 
English  constitutional  practice,  in 
this  particular.  See  a  memoran- 
dum by  the  speaker  of  the  Assembly 
on  the  presentation  of  money  bills; 
ordered  by  the  Assembly  to  be 
printed  in  July,  1873. 

''  As  to  this  exception,  see  antCf 


i 


Bills  rc- 
servt'd  for 
coiiiidfia- 
tion  of  the 
Crown. 


132       PARLIAMENTAllY  GOVERNMENT  IN  THE  COLONIES. 

royal  instructions  to  reserve  certain  specified  bills  for 
the  signification  of  her  Majesty's  pleasure  thereon,  or 
to  give  the  royal  assent  to  them  only  in  the  event  of 
their  containing  a  clause  to  suspend  their  operation 
until  they  have  been  confirmed  by  the  Crown.  Bills 
requiring  to  be  thus  dealt  with  are  not  defined  alike  in 
the  instructions  to  all  governors,  but  the  instructions 
on  this  head  refer  generally  to  matters  of  imperial  con- 
cern, such  as  bills  affecting  currency,  the  army  and 
navy,  differential  duties,  the  operation  and  eflect  of 
treaties  with  foreign  powers,  and  any  enactments  of  an 
unusual  nature  touching  the  prerogative,  or  the  rights 
of  the  queen's  subjects  not  resident  in  the  particular 
colonv.' 

In  the  most  recent  instructions  issued  to  the  governors 
of  colonies,  and  especially  in  those  accompanying  the 
letters-patent  constituting  the  oflfice  of  governor  of  the 
Cape  of  Good  Hope  and  of  South  Australia,  these 
directions  are  defined  in  the  following  terms:  — 

The  governor  is  forbidden  to  assent  in  the  queen's 
name  to  any  bills  of  the  classes  hereinafter  specified : 
granting  a  divorce  from  the  bonds  of  marriage;  grant- 
ing land,  money,  or  other  donation  or  gratuity,  to  him- 
self; to  make  a  legal  tender  of  paper,  or  other  currency 
except  the  coin  of  the  realm,  or  other  gold  or  silver 
coin  ;  to  impose  differential  duties  (other  than  as  allowed 
by  the  Australian  Colonies  duties  act  1873) ;  which  may 
contain  provisions  apparently  inconsistent  w-ith  obliga- 
tions imposed  on  the  imperial  crown  by  treaty ;  which 
may  interfere  with  the  discipline  or  control  of  the  im- 


p.  85.  rursuant  to  the  change  in 
the  tenor  of  the  royal  instructions 
to  governors  of  Canada,  —  first  in- 
troduced in  1878,  by  tlie  omission 
of  any  direction  for  the  reservation 
of  bills,  —  an  act  passed  by  the 
Canadian  parliament  in  1879,  to 
effect  the  judicial  separation  of  ceV' 


tain  parties  from  the  bonds  of  mat- 
rimony, was  assented  to  by  the 
governor-general  (4*2  Vict.  79), 
which  act  previously  must  needs  have 
been  reserved  for  the  significatiou 
of  the  royal  pleasure  thereon. 
'  Col.  Reg.  1879,  nos.  32,  33. 


E8. 


IMPERIAL  CONTROL  OVER  COLONIAL  LEGISLATION.     133 


lis  for 
ion,  or 
'ent  of 
jration 
Bills 
like  in 
ictions 
111  con- 
ly  and 
feet  of 
i  of  an 
rights 
ticular 

/^ernors 
ng  the 
of  the 
,  these 

ueen's 
cified : 
grant- 
o  him- 
|rrency 
silver 
lllowed 
h  may 
)bliga- 
which 
le  im- 


of  mat- 
by  the 
bt.    79), 
ledshave 
lificatiou 


t 


33. 


perial  army  or  navy ;  \»'hich  may  contain  provisions  of 
an  extraordinary  nature  and  importance,  whereby  the 
royal  prerogative,  or  the  rights  and  property  of  British 
subjects  not  residing  in  the  colony,  or  the  trade  and 
shipping  of  the  United  Kingdom  and  its  dependencies, 
may  l)e  prejudiced;  and  any  bUl  containing  provisions 
to  which  the  royal  assent  has  been  once  refused,  or 
which  has  been  disallowed.  Unless  any  such  bill  shall 
contain  a  clause  suspending  the  o])eration  of  the  same 
until  the  signification  of  the  roynl  pleasure  thereupon, 
or  unless  the  governor  shall  have  satisfied  himself  that 
an  urgent  necessity  exists,  requiring  that  such  bill 
shall  be  brought  into  immediate  operation,  in  which 
case  the  governor  is  authorized  to  assent  thereto ;  ex- 
cept such  bill  shall  be  repugnant  to  the  law  of  P]ngland, 
or  inconsistent  with  any  treaty  obligations  of  the 
British  Crown.  But  he  is  required  to  transmit  any 
bill  so  assented  to  to  the  sovereign,  by  the  earliest  op- 
portunity, together  with  his  reasons  for  assenting  to  it.' 
By  an  imperial  statute,  passed  in  1865,  it  is  provided 
that  no  colonial  law,  which  has  been  assented  to  by  the  A""**"* 
governor,  shall  be  deemed  to  have  been  void  by  reason  trary  to 

...  instruc- 

only  of  its  being  inconsistent  with  the  tenor  of  any  tions. 
instructions  applicable  to  the  same,  which  may  have 
been  given  to  the  governor  by  or  on  behalf  of  the 
Crown.*^ 

But  it  is  not  competent  to  the  advisers  of  the  Crown 
in  England  to  recommend  the  sovereign  to  give  her  Actsro- 
assent  to  any  act  passed  by  a  colonial  leojislature,  and  r"^">'\"| 
reserved   for  the   signification  of  the   royal   pleasure  iv^'"^^'* 
thereon,  if  the  same  should  contain  any  provision  re- 
pugnant to  an  existing  imperial  statute.     Even  if  such 


to 


J  Instructions  to  Earl  DufEerin, 
dated  May  22,  1872,  sec.  9.  In- 
structions to  the  governor  (for  the 
time  being)  of  the  colony  of  the 
Cape  of  Good  Hope,  dated  Feb.  2(J, 


1877.  Instructions  to  the  governor 
of  South  Australia,  dated  April  28, 
1877. 

k  28  and  29  Vict.  c.  63,  sec.  4. 


fl 


k 


? 


Lppal  ad- 
vice taken 
by  a  go- 
vernor be- 
fore as- 


bilis. 


134       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

repngnaiioy  be  merely  technical,  an  act  of  Parliament 
must  first  be  obtained  before  the  colonial  act  can  be 
assented  to.' 

When  the  governor  of  a  colony  is  advised  by  his 
ministers  to  give  the  royal  assent  to  a  bill  passed  by 
the  colonial  legislature,  it  is  essential  that  he  should  be 
i.uii'"^*°  assured,  upon  proper  authority,  that  the  particular  mea- 
sure is  within  the  competency  of  the  legislature  to 
enact ;  and  that  it  is  one  which  the  royal  instructions 
do  not  require  ihat  he  should  reserve  for  the  significa- 
tion of  the  pleasure  of  tne  Crown.  Accordingly,  it  is 
customary,  in  every  colony,  for  the  governor  to  receive 
from  the  local  minister  of  justice,  or  other  law  officers 
of  the  Crown,  a  report  in  reference  to  all  bills  to  be 
submitted  for  his  sanction,  which  specifies  whether  any 
legal  objectii'i  existed  to  his  assenting  to  them,  or 
whether  his  duty  and  obligations,  as  representative  of 
the  Crown,  would  necessitate  that  he  should  withhold 
his  assent  from  any  one  of  such  bills,  or  reserve  the  same 
for  the  consideration  of  the  imperial  government.  If 
the  governor  should  not  be  satisfied  as  to  his  duty  upon 
receiving  a  written  report  from  the  colonial  law  officers, 

—  which  should  he  made,  not  in  their  capacity  of  politi- 
cal advise^  but  as  tl'e  authorized  exponents  of  the  law, 

—  certifying  that  no  legal  impediment  exists  to  his 
giving  the  sanction  of  the  Crown  to  the  bills  presented 
to  him,  he  is  at  liberty,  in  any  matter  which  is  not  of 
purely  local  concern,  to  take  further  counsel,  from  the 
attorney  and  solicitor  generals  of  England,  by  whom 
the  Crown  itself  must  ultimately  be  advised,  in  all 
doubtful  cases  of  constitutional  practice.'"  But  if  the 
question,  as  to  the  legality  of  which  the  governor  is 


'  Case  of  the  Canadian  Copyriijlit  vol.    iii.   p.    Oil.      Iftlil.   1872-73, 

Act,  Iliins.  Deh.  vol.  ccxxv.  p.  lliO.  vol.   i.   p.   527.     Connnons   Tapers, 

Act  38  and  -i!)  Vict.  c.  iVJ.  1878,  C.   1!)S-J,  p.  41 ;  Quoeusland 

"'New   Soutli    Wales,   Lcff.    As-  (iold   Fields  Act,  of  IbTU:  aee  post, 

sembly  N'otes  and  I'loc.  1859-60,  p.  154. 


*\ 


'jMifaltfiaA 


IMPERIAL  CONTROL  OVER  COLONIAL  LEGISLATION.      135 


it   IS 


desirous  of  being  assured,  be  one  of  purely  local  concern, 
it  would  not  be  regular  for  the  governor  to  take  the  for- 
mal and  official  advice  of  other  judicial  or  legal  authori- 
ties than  those  who  occupy  in  the  colony  the  position 
of  crown  law  officers.  As  a  general  rule,  a  governor 
would  be  justified  in  accepting  and  acting  upon  state- 
ments of  such  functionaries,  in  local  matters.  Though 
if  his  own  individual  judgment  does  not  coincide  with 
their  interpretation  of  the  law,  his  responsibility  to  the 
Crown  may  require  him  to  delay  acting  on  the  advice 
of  his  ministers.  But  whatever  steps  he  may  think  fit 
to  take  upon  such  a  grave  emergency,  and  from  what- 
ever materials  his  opinion  may  be  formed,  he  is  indivi- 
dually responsible  for  his  conduct,  and  cannot  shelter 
himself  behind  advice  obtained  from  outside  his  minis- 
try.'' 

And  here  it  may  be  well  to  state  the  rules  which  have 
been  laid  down  by  the  imperial  government  in  respect 
to  applications  from  a  colony  for  the  opinion  of  the 
law  officers  of  the  Crown  in  England  upon  any  impor- 
tant question  of  law  which  has  arisen  in  the  adminis- 
tration of  the  colony,  especially  questions  of  a  legal  or 
constitutional  nature,  affiicting  the  exercise  of  the  royal 
prerogative,  or  the  relative  and  appropriate  rights  of 
either  branch  of  the  legislature  therein. 

If  in  any  case  a  colonial  government  or  legislature 
desire  to  obtain  the  opinion  of  the  English  law  officers 
on  any  question  of  this  description,  it  is  necessary  that 
the  secretary  of  state  should  be  furnished  with  a  de- 
tailed statement,  explaining  precisely  what  doubts  have 
arisen,  and  under  what  circumstances,  enumerating  the 
instruments  or  laws  bearing  on  these  doubts  (of  which 
complete  copies  should  in  all  cases  be  annexed),  setting 
forth   verbatim,  the   particular  provisions  of  the  same 


Advice  of 
colonial 
crown  law 
officers. 


Of  impe- 
rial crown 
law  offi- 
cers ; 


how 
taken ; 


"  Secretary  Sir  "M.  Ilicks-lV^ach  to   Governor   Boweii,  July  5, 
CoiiMuoiis  Piipers,  1878,  C.  2173,  p.  81     And  see  unte,  p.  8. 


1878. 


on  whose 
behalf ; 


when  im- 
properly 
Bought. 


136       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

which  appear  relevant  to  the  matter  in  hand,  and  in 
conclusion  stating  explicitly  the  particular  questions  to 
which  answers  are  desired.  All  papers  for  the  con- 
sideration of  the  attorney-general  and  solicitor-general 
should  be  sent  in  quadruplicate." 

The  opinion  of  her  Majesty's  law  advisers  is  occasion- 
ally obtained  for  the  guidance  of  the  governor,  in  the 
exercise  of  his  personal  discretion  ;  and  not  unfrequently 
similar  advice  is  requested  by  her  Majesty's  government 
on  the  application  of  a  colonial  ministry,  v;ho  are  pre- 
pared to  guide  themselves  by  the  advice  which  they 
might  receive.  But  the  queen's  ministers  have  never 
undertaken  to  obtain  the  official  opinions  of  the  attorney 
and  solicitor  generals  for  an  assembly  or  association  of 
private  gentlemen,  however  respectable.  "  It  would  be 
peculiarly  inconsistent  for  her  Majesty's  advisers  in  this 
country  to  call  for  such  an  opinion  with  the  apparent 
object  of  guiding  an  opposition  to  the  responsible  advis- 
ers of  her  Majesty's  representative  in"  any  colony  of 
the  British  Crown.^ 

In  1867,  Sir  George  Grey,  leader  of  the  opposition  in  tlie 
New  Zealand  House  of  Representatives,  applied  for  tlie  opi- 
nion of  the  law  officers  of  the  Crown  in  England  in  reference 
to  a  ministerial  measure  for  the  aholition  of  the  provincial 
governments,  then  pending  in  the  colonial  legislature,  and 
which  he  w.as  desirous  of  defeating.  Sir  G.  Grey  was  espe- 
cially anxious  to  know  whether  in  tlie  opinion  of  these  emi- 
nent legal  functionaries,  the  Imperial  Parliament  had  or  had 
not  conferred  upon  the  General  Assembly  of  New  Zealand, 
by  the  Constitution  act,  the  power  of  abolishing  the  provinces 
without  their  consent.  But  the  secretary  of  state  had  pre- 
viously announced  that  her  Majesty  would  not  be  advised  to 
exercise  her  power  of  disallowing  the  act  for  the  abolition  of 


0  C.  O.  Reff.  1879,  c.  15. 
P  Secretary  of  State  for  the  Co- 
lonies, despatch  of  Oct.  2'2,  1807; 


Queensland    Assembly   Votes,    Se- 
cond Session,  1867,  vol.  i.  p.  033. 


IMPERIAL  CONTROL  OVER  COLONIAL  LEG  SLATION.   137 


hs,    Se- 
033. 


provinces;  and  no  response  was  made  to  Sir  George  Grey's 
application.  <i 

Whenever  bills  are  tendered  to  the  governor  of  a  Govcr- 

n  '    •  ^  1  nor  s  (US- 

colony  for  the  purpose  of  receiving  the  royal  assent,  he  crotion  in 

is  bound  to  exercise  his  discretion  in  regard  to  the  ?rbiiis"*'' 
same ;  and  to  determine,  upon  his  own  responsibility  as 
an  imperial  officer,  unfettered  by  any  consideration  of 
the  advice  which  he  has  received  from  his  own  ministers 
upon  the  subject,  the  course  he  ought  to  pursue  in 
respect  to  such  bills :  whether  to  grant,  or  to  withhold, 
the  royal  assent,  or  to  reserve  any  particular  bills  for  the 
signification  of  the  royal  pleasure  thereon.  It  then 
becomes  the  duty  of  the  governor  to  transmit  to  the 
secretary  of  state  for  the  colonies  all  laws  assented  to 
by  him  in  the  name  of  the  sovereign,  or  reserved  for 
the  consideration  of  the  Crown  ;  accompanied,  whene^^er 
it  may  seem  to  him  to  be  necessary,  with  such  explana- 
tory observations  as  may  be  required  to  exhibit  the 
reasons  and  occasions  for  proposing  such  laws  for  the 
final  determination  thereon  of  the  queen  in  council.' 

For,  although  a  governor  as  representing  the  Crown  Second 
is  empowered  to  give  the  royal  assent  to  bills,  this  act  tiio"^^ 
is  not  final  and  conclusive ;  the  Crown  itself  having,  in  t:rown. 
point  of  fact,  a  second  veto.    All  statutes  assented  to  by 
the  governor  of  a  colony  go  into  force  immediately, 
unless  they  contain  a  clause  suspending  their  operation 
until  the  issue  of  a  proclamation  of  approval  by  the 


0  Xew  Zealand  Gazette,  1878, 
pp.  918,  919;  New  Zealand  Papers, 
1878,  A.  1,  pp.24,  2.-). 

'  The  Colonial  Secretary  (Earl 
Grey),  Hans.  Deb.  vol.  cv.  p.  470. 
British  North  America  Act  1867, 
sec.  5").  Royal  Instructions  to  Go- 
vernors, whenever  any  parties  who 
may  consider  themselves  aggrieved 
by  an  act  passed  by  a  colonial  le- 
gislatm-e  forward  to  the  governor, 
for  transmission   to  the  sovereign 


throngh  the  secretary  of  state,  me- 
morials for  the  disallowance  of  the 
act,  the  governor  should  furnish  his 
ministers  with  copies  of  such  repre- 
sentations or  memorials,  that  they 
may  append  to  the  same  whatever 
observations  they  may  think  fit. 
Case  of  the  Act  suspending  a  Grant 
to  King's  College  ;  New  Hrunswick 
Assembly  Journals,  1859,  pp.  Hi, 
202. 


i 


138       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


Revision 
of  colonial 
bills  by 
imperial 
govern- 
ment. 


queen  in  council,"  or  some  other  specific  provision  to 
the  contrary ;  but  the  governor  is  required  to  transmit 
a  copy  thereof  to  the  secretary  of  state  for  the  colonies ; 
and  the  queen  in  council  may,  within  two  years  after 
the  receipt  of  the  same,  disallow  any  such  act.* 

All  colonial  enactments  are  submitted  to  the  scrutiny 
of  counsel  by  the  colonial  department,  and  if  they  re- 
late to  commercial  questions  are  referred  to  the  consi- 
deration of  the  board  of  trade,"  and  when  necessary  to  the 
law  officers  of  the  Crown  to  ascertain  their  legality,  and 
to  determine  whethe;  they  contain  any  p  ovision  which 
interferes  with  the  exercise  of  any  prerogative  of  the 
Crown  "^  or  which  is  **  repugnant "  to  the  law  of  England. 
And  any  law  to  which  objection  could  be  taken  on  the 
ground  of  repugnancy  is,  to  the  extent  wherein  it  is  so 
repugnant  to  imperial  legislation,  "  absolutely  void  ai,d 
inoperative,"^^  and  should  be  formally  disallowed  by 
the  Crown. 

It  ia  also  the  duty  of  the  law  advisers  of  the  colonial 
office  to  ascertain  whether  colonial  laws  have  been 
framed  so  as  to  give  adequate  and  complete  effect  to 
tne  intentions  of  the  legislature. 

In  conformity  with  ancient  ..sage,  the  assent  of  the 
Crown  to  colonial  acts,  or  its  disallowance  of  the  same, 
is  signified  by  the  approval  by  her  Majesty  in  council 
of  reports  advising  the  course  to  be  pursued  in  particu- 
lar cases.  These  reports  nominally  proceed  as  of  old, 
from  the  committee  of  council  for  trade  and  plantations 


•  As  in  the  case  of  the  Canada 
Currency  Acts,  passed  in  ISol,  and 
in  1S5:{;  and  of  the  Canadian  Oopy- 
right  Act  of  ;U  Vict.  c.  56. 

*  Clark.  Colonial  Law,  p.  40 ; 
31  Geo.  III.  c.  ;n,  sec.  31;  li.  N. 
America  Act,  18(57,  sec.  oG;  S. 
Africa  Union  Act,  1S77,  sec.  20. 

"  T(<dd,  rtul.  Govt.  vol.  ii.  pp. 
525,  003. 


'  See  Commons  Papers,  1864, 
vol.  xl.  pp.  0!>7,  0!)8. 

"^  28  and  2  Vict.  c.  63,  sees.  2- 
4.  As  to  what  constitntes  "  repug- 
nancy," and  tlie  method  of  deter- 
mining the  same,  see  Law  Magazine 
(185}),  X.  S.  vol.  XX.  p.  1.  La  Ke- 
vne  Critique,  &c.,  du  Canada,  Jan- 
vier, 1872,  p  51 ;  Hansard  Deb.  vol. 
ccxxv.  pp.  282,  426. 


flES. 

sion  to 
ransmit 
)lonies ; 
rs  after 

crutiny 
liej  re- 
)  consi- 
y  to  the 
ty,  and 
I  which 

of  the 
1  gland, 
on  the 

it  is  .«o 
)id  ai.d 
ved  by 

'olonial 

'■    been 

'ect  to 

of  the 
same, 

;ouncil 

articu- 
f  old, 

;ations 


1864, 

sees.  2- 

repug. 

;  dtiter- 

La  Ue- 
la,  Jan- 
leb.  vol. 


ial 


inact- 
menta. 


IMPERIAL  CONTROL  OVER  COLONIAL  LEGISLATION.      139 

(now  called  the  board  of  trade),  but  they  actually  ema- 
nate from  the  colonial  office.  No  colonial  act  can  be 
disallowed,  except  upon  the  issue  of  an  order  of  the 
queen  in  council.  Otherwise,  it  is  customary  to  notify 
the  governor  that  the  acts  forwarded  by  him  will  be 
"  left  to  their  operation ;  "  or,  "  that  her  Majesty  will 
not  be  advised  to  exercise  her  power  of  disallowance 
with  respect  to  "  the  same.'' 

The  constitutional  practice  in  regard  to  imperial  con-  J"'fjJ7v"' 
trol  over  bills  passed  by  colonial  legislatures,  and  the  smn  of 
circumstances  under  which  that  control  is  now  exer- 
cised, in  the  case  of  self-f^overning  colonies,  will  be 
farther  exemplified  by  a  series  of  illustrative  prece- 
dents :  — 

These  precedents,  it  should  be  observed,  are  princi- 
pally taken  from  the  political  annals  of  Canada,  as 
affording  a  wider  and  more  instructive  field  of  inquiry 
into  the  practical  working  of  imperial  supervision  over 
colonial  legislation  than  is  obtainable  from  any  other 
quarter.  For  the  experimen'  of  incorporating  the 
principle  of  "  responsible  government"  into  the  politi- 
cal institutions  of  a  colony  was  first  applied  to  Canada, 
before  it  was  introduced  elsewhere.  And  it  is  also 
important  to  notice  the  continued  exercise  of  imperial 
ascendancy  over  legislation  in  Canada,  when  her  boun- 
daries were  enlarged,  her  political  importance  increased, 
and  her  right  to  the  fullest  measure  of  political  freedom 
consistent  with  the  supreme  authority  of  the  empire 
was  frankly  acknowledged  by  the  mother  couritry,  upon 
her  elevation  into  the  rank  of  a  dominion  with  subordi- 
nate provinces  subject  to  her  rule.  We  will  not  ,  first, 
Canadian  practice,  from  the  time  of  the  union  between 


»  First     Heport,     West     Indies  i7j(V/.  vol.  cxxii.  pp.  1107,  1288.    I!i» 

Legal   Comiuissiou;   Commons   Pa-  ]iai)er  in  tl»;>  Nineteenth  Ceiuiiry  for 

pers,  1825,   vol.  xv.  p.  23;);  Earl  June,  187!),  y>.  O."):).     Canada  ISesa. 

Clrey,  Hans.  Deb.  vol.  cvi.  p.  1120;  Papers,  1870,  no.  ;ii). 


1  j 


,1! 


,  1 , , 


It 


I 


140       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


If    i! 


lefo?"*^*  Upper  and  Lower  Canada,  and  the  consequent  intro- 
Tonfe-       duction  of  local  self-government  into  the  united  pro- 
vince in  1841/  up  to  the  period  of  the  confederation  of 
the  British  North  American  colonies  in  1867. 

At  the  close  of  the  first  session  of  the  parliament  of 
United  Canada,  —  on  Sept.  18,  1841,  —  no  less  than 
fifteen  bills  were  reserved  for  the  signification  of  the 
royal  pleasure  thereon.  But  all  these  bills  after- 
wards received  the  royal  assent,  with  the  exception 
of  a  bill  to  provide  for  the  freedom  of  elections. 
For  some  reason,  which  is  not  on  record,  the  assent 
of  the  Crown  was  withholden  from  this  measure.  In 
the  following  session,  a  new  bill  on  the  subject  was 
introduced,  which  was  passed  and  assented  to  by  the 
governor-general. 

In  1842  and  1843,  and  also  in  subsequent  sessions, 
lip  to  1878,  various  Canadian  bills  were  reserved  for  the 
consideration  of  her  Majesty's  government.  But  this 
course  was  necessitated,  in  regard  to  certain  descrip- 
tions of  measures,  by  reason  of  their  affecting  the  pre- 
rogative of  the  Crown,  or  being  of  a  character  that, 
under  the  royal  instructions,  rendered  such  a  proceed- 
ing imperative.^  It  is  not  requisite,  therefore,  to  make 
special  reference  to  bills  reserved  under  these  circum- 


y  For  a  return  of  the  titles  and 
dates  of  bills  passed  by  the  legisla- 
tures of  Canada,  Nova  Scotia,  New 
Brunswick,  Newfoundland,  and 
Prince  Edward  Island  since  1830, 
and  up  to  18G4,  which  were  reserved 
—  by  the  governor,  or  by  the  opera- 
tion of  a  suspending  clause  in  the 
particular  acts  —  for  reference  to 
the  imperial  government,  specify- 
ing those  to  which  the  royal  assent 
was  ultimately  refused;  with  ex- 
tracts from  despatches  assigning 
reasons  for  the  same,  see  Com- 
mons Papers,  1864,  vol.  xl.  p.  OGo. 
"NVithiu  this  period,  no  less  than 
three  iiuudred  and   forty-one   bills 


were  reserved  by  the  governors  of 
these  British  N  rth  American  co- 
lonies, or  suspended  in  tiieir  opera- 
tion, until  her  Majesty's  pleasure 
should  be  made  known;  to  forty- 
seven  of  which  bills  the  royal  as- 
sent was,  for  various  reasons  of  law 
or  of  public  policy,  afterwards  re- 
fused. Most  of  these  cases,  how- 
ever, occurred  prior  to  the  conces- 
sion of  "  responsible  government;  " 
since  then  the  number  of  bills  re- 
served has  been  considerably  re- 
duced, and  gradually  lessened  to  a 
minimum.     (Ihid.  p  709.) 

*  Canada  I..('g.   Assembly  Jour- 
nals, 1843,  p.  210. 


sessions. 


IMPERIAL  CONTROL  OVER  COLONIAL  LEGISLATION.   I4l 

stances ;  as,  in  most  instances,  they  afterwards  received 
the  royal  assent.  It  will  suffice  to  point  out  the  bills 
which  failed  to  receive  the  assent  of  the  Crown ;  or 
which,  notwithstanding  that  they  had  received  the 
same  through  the  governor-general,  were  afterwards 
disallowed  by  the  queen  in  council. 

In  1843,  Sir  Charles  Metcalfe  being  governor-general,  and  Sooret  so- 
Messrs.  Lafontaine  and  Baldwin  leaders  of  the  provincial  ad- 
ministration, they  obtained  his  Excellency's  consent  to  submit 
to  parliament  a  bill  for  the  discouragement  of  secret  societies. 
But  the  measure  which  they  introduced  included  several 
clauses  to  which  the  governor  repeatedly  took  exception,  on 
the  ground  that  they  were  arbitrary,  oppressive,  and  uncon- 
stitutional. Nevertheless,  the  bill  passed  through  both  houses 
of  the  legislature.  Whereupon,  the  governor  declared  his 
intention  of  reserving  it  for  the  consideration  of  the  imperial 
gover-^.ment.  Ministers  objected  to  this  proceeding.  They 
also  differed  with  the  governor,  in  regard  to  the  mode  of  ex- 
ercising the  patronage  of  the  Crown  in  appointments  to  office. 
They  accordingly  resigned,  —  one  only  of  their  number  re- 
maining in  office.  At  this  juncture,  parliament  was  pro- 
rogued ;  the  secret  societies  bill,  with  some  others  of  minor 
importance,  being  reserved  for  the  signification  of  the  queen's 
pleasure  thereon.  A  new  administration  was  then  formed, 
and  a  dissolution  of  parliament  ensued.  In  the  new  Assem- 
bly, the  incoming  ministers  were  sustained.  The  royal  assent 
was  withholden  from  the  secret  societies  bill ;  because  "  the 
queen  cannot  be  advised  to  concur  in  an  enactment  placing 
any  class  of  her  Majesty's  subjects  beyond  the  protection  of 
the  law,  and  depriving  them,  without  a  previous  conviction 
for  crime,  of  the  privileges  to  which  all  British  subjects  have 
a  common  title."  The  governor-general  was  also  notified  that 
his  conduct  was  approved  by  her  Majesty's  government.* 

In  1844,  a  reserved  bill,  for  better  securing  the  independ-  Lcpjisla- 
ence  of  the  Legislative  Council,  was  not  assented  to,  because  the  oil  bill"""" 
law  officers  of  the  Crown  advised  that  it  contained  provisions 


■  Canada  Leg.  Assembly  Jour-    xl.  p.  689;  Hans.   Deb.  vol.  Ixxv. 
uals,  1843,  pp.  181-210;  1844-5,     pp.  39-72. 
p.  (30;  Commons  Papers,  1864,  vol. 


c 


142       PARLIAMENTARY  GOVERNMENT  IN  TIIE  COLONIES. 


i    I 


Ordnance 
bill. 


Divorce 
bill. 


Salary  at- 

tacliinent 

bill 


Bj'town 
incorpora- 
tion. 


Currency 
bills. 


that  were  "  repugnant "  to  the  imperial  Act  3  and  4  Vict.  c.  35.'' 
Ill  the  same  year,  a  bill  to  explain  and  amend  an  act  of  the 
previous  session,  vesting  certain  property  in  the  officers  of  her 
Majesty's  ordnance,  was  reserved,  and  not  afterwards  assented 
to,  for  reasons  that  were  not  made  known  to  parliament." 
But,  in  1846,  another  act  on  this  subject  was  passed,  and 
assented  to. 

In  18-10,  a  reserved  bill,  to  divorce  one  Mr.  Harris  from  his 
wife,  was  refused  tlie  royal  assent,  on  the  report  of  the  law 
officers  of  the  Crown  that,  whereas  the  parties  were  not  domi- 
ciled in  Canada  at  the  time  of  the  passing  of  the  act,  the  courts 
of  law  would  not  consider  the  act  adequate  to  effect  a  valid 
divorce,  even  if  it  were  to  receive  the  sanction  of  the  Crown.^ 

In  the  same  year,  the  royal  assent  was  withheld  from  a  re- 
served bill  to  authorize  the  creditor  of  a  public  officer  to 
attach  a  part  of  his  official  salary,  in  satisfaction  of  a  judg- 
ment against  liim,  —  because  this  bill  was  liable  to  grave  ob- 
jections, on  grounds  of  public  policy,  and  because  no  similar 
law  exists  in  England.** 

By  order  of  the  queen  in  council,  dated  July  18,  1849,  a 
Canadian  act,  passed  and  assented  to  in  1847,  for  the  incorpo- 
ration of  the  town  of  Bytown,  was  disallowed.'  Meanwhile, 
however,  the  Canadian  parliament  in  1849  had  passed  an  act 
to  repeal  the  act  aforesaid  from  Jan.  1,  1850,  and  to  substi- 
tute otiier  provisions  for  the  incorporation  of  Bytown.  The 
grounds  of  objection  taken  by  the  imperial  government  to  the 
act  of  1847  do  not  appear  ,  but  it  is  evident  that  they  were 
removed  in  the  later  act  of  1849,  inasmuch  as  that  statute  was 
allowed  to  go  into  operation.^ 

By  order  of  the  queen  in  council,  dated  April  14,  1851,  a 
Canadian  act,  passed  and  assented  to  in  1850,  in  relation  to 
the  currency,  was  disallowed,  for  various  reasons :  (1)  be- 
cause the  governor-general,  b}'  assenting  to  this  act,  and  not 
referring  it  for  the  special  consideration  of  the  imperial  go- 
vernment, acted  in  contravention  of  the  royal  instructions  ; 
(2j  because  the  act  proposed  to  confer  upon  the  governor- 
general  the  right  of  coining,  —  a  prerogative  reserved  by  con- 


••  Canada  Log.  Assembly  Jour- 
nals, 1844-5,  p.  05. 
«:  Ihi,1.  1846,  p.  81. 
<>  Ibid.  p.  29. 


•  Ihiil.  p.  4.3. 

*  Ihiil.  1850,  p.  7. 

8  See  al.so,  Canada  Act  13  and  14 
Vict.  c.  8->. 


St 
CO 
CO 

hf 

tr( 
th 
mi 

CO 


ref 


i  \ 


IMPERIAL  CONTROL  OVER  COLONIAL  LEGISLATION.       143 

stitutional  law  to  the  sovereign  ;  (3)  because  of  the  clause 
contained  therein  to  alter  the  current  rates  of  certain  foreign 
coins,  —  which,  being  enacted  without  the  previous  assent  of 
her  Majesty  in  council,  was  an  interference  with  iMiperial  con- 
trol over  the  value  of  current  money  in  circulation  throughout 
the  realm.  Previous  to  the  formal  disallowance  of  this  act, 
much  correspondence  took  place  respecting  it  between  the 
colonial  and  imperial  governments.'*  Subsequently,  in  the 
years  1851  and  1853,  new  currency  acts  were  passed  by 
the  Canadian  parliament ;  but  they  were  framed  with  due 
regard  to  the  royal  prerogative,  and  contained  clauses  to  post- 
pone their  enforcement  until  after  the  issue  of  royal  proclama- 
tions to  declare  the  time  when  they  should  go  into  operation. 
These  acts,  moreover,  were  carefully  considered  between  the 
respective  governments,  and  the  correspondence  thereon  com- 
municated to  the  Canadian  parliament.'  And  although,  by  the 
British  North  America  act  of  1867,  the  Imperial  Parliament 
has  specially  empowered  the  parliament  of  Canada  to  exercise 
"  exclusive  legislative  authority  "  in  relation  to  "  currency  and 
coinage,"  the  acts  passed  in  Canada,  upon  the  subject  of  the 
currency,  in  1868  and  in  1871,  expressly  conserve  the  preroga- 
tive of  the  Crown  in  the  matter  of  coinage,  and  authorize  her 
Majesty  to  affix  by  proclamation,  from  time  to  time,  the  rates 
at  which  coins  in  circulation  in  Canada,  or  struck  off  by  order 
of  her  Majesty  for  use  in  Canada,  shall  pass  current.^ 

By  order  of  the  queen  in  council,  dated  Sept.  23,  1859, 
a  Canadian  act,  passed  and  assented  to  in  that  year,  to  impose 
a  duty  on  vessels  admitted  to  registry  and  to  the  Canadian  Shipping 
coasting  trade,  and  belonging  to  countries  not  admitting  Cana- 
dian  vessels  to  similar  privileges,  was  disallowed.'' 

By  order  of  the  queen  in  council,  dated  Jan.  6,  1862,  a 

Canadian  act,  passed  and  assented  to  in  1861,  to  give  juris-  Extr.-i-ter- 

diction  to  Canadian  magistrates,  in  respect  of  certain  offences  r'*'!'"!''^^ 

°     .  *■  ic'e[isla- 

committed  in  New  Brunswick,  by  persons  afterwards  escaping  tion. 
to  Canada,  was  disallowed,  as  being  in  excess  of  the  jurisdic- 


•>  Canada    Ijcg.    Assembly  Jour-  in  refrard  to  bronze  coins  for  circu- 

nals,  1851,  appx.  Y.  Y.  lation  in  Canada,  prefixed  to   the 

'  Ihiil.  1852-3,  appx.  P.  Canada  Stats.  1877,  ]>.  01.      Also 

J  Canada   Acts   31   Vict.   c.   45;  Canada  Snss.  Papers,  1870,  no.  40. 

34  Vict.  c.  4;  and  see  the  Queen's  ^  Caiuuhv  Leg.  Assembly  Jour- 

Proclanuition,  dated  Dec.   9,  lb7G,  nals,  1860,  p.  0. 


;il 


• 


144       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


|i:' 


Control  of 
Crown 
over  Ca- 
nadian le- 
gislation, 
since  Con- 
federa- 
tion. 


Governor- 
general's 
salary  bill. 


tion  belonging  to  the  danadian  parliament,  and  only  to  be 
properly  effected  by  imperial  legislation  ;  or  by  an  arrange- 
ment, in  the  nature  of  an  agreement  of  extradition  between 
the  two  provinces,  to  be  carried  into  effect  by  acts  of  the  two 
provincial  legislatures.' 

Let  us  now  briefly  notice  the  instances  wherein  bills  passed 
by  the  parliament  of  the  dominion  of  Canada,  after  its  esta- 
blishment under  the  British  North  America  a"t  of  18G7,  have 
been  disallowed  by  the  Crown. 

On  May  22,  18G8,  at  the  close  of  the  first  session  of  par- 
liament of  the  new  dominion  of  Canada,  an  act  passed  by  the 
senate  and  house  of  commons  '•  to  fix  the  salary  of  the  go- 
vernor-general "  was  reserved  for  the  consideration  of  her 
^Majesty's  pleasure  thereon.  It  was  proposed,  by  this  act, 
to  reduce  the  salary  of  the  governor-general  from  £10,000, 
at  which  rate  it  had  been  fixed  by  the  imperial  act  of  union, 
in  1867  (subject  to  alteration  by  the  parliament  of  Canada), 
to  £6,500. 

But  on  July  30, 1868,  the  secretary  of  state  for  the  colonies 
notified  Lord  Monck  (the  governor-general)  tliat  while  it  was 
"  u  "+11  reluctance,  and  only  on  serious  occasions,  that  the 
queen's  government  can  advise  her  Majesty  to  withhold  the 
royai. sanction  from  a  bill  which  has  passed  two  branches  of 
the  Canadian  parliament,"  yet  that  a  regard  for  the  interests 
of  Canada,  and  a  well-founded  apprehension  that  a  reduction 
in  the  salary  of  the  governor  which  would  place  the  office,  as 
far  as  salary  is  a  standard  of  recognition,  in  the  third  class 
among  colonial  governments,  obliged  her  Majesty's  govern- 
ment to  advise  that  this  bill  should  not  be  permitted  to  become 
law.'"  In  accordance  with  the  opinions  entertained  by  the 
imperial  government  on  this  subject,  and  with  the  right  to 
legislate  thereon  which  was  expressly  conferred  upon  the 
parliament  of  Canada  by  the   105th  section  of  the  British 


•  Canad?  Lej;.  Assembly  Jour- 
nals, 1862,  p.  101.  The  law  offi- 
cers of  the  Crown  gave  an  opi- 
nion in  1855,  in  reference  to  Jiriti.sh 
(iuiana.  "We  conceive  that  the 
colonial  legisiatnre  cannot  legally 
exercise  its  jurisdiction  beyond  its 
territorial  limits,  —  three  miles  from 
the  shore,  —  or,  at  the  utmost,  can 


only  do  this  over  persons  domi- 
cileVj  in  the  colony  who  may  offend 
against  its  ordinances  even  beyond 
those  limits,  but  not  over  other 
persons."  (Forsyth,  Constitutional 
Cases,  p.  24.) 

>»  Canada   Sess.   Papers,  1869, 
no.  73. 


lES. 

y  to  be 
rrange- 
)etween 
the  two 

i  passed 
its  esta- 
61,  have 

of  par- 
l  by  the 
the  go- 
of her 
his  act, 
£10,000, 
f  union, 
;!anada), 

colonies 
le  it  was 
that  the 
iiold  the 
nches  of 
interests 
eduction 
Dffice,  as 
id  class 
govern- 
become 
by  the 
right  to 
)on  the 
British 


lis  flomi- 
lay  offend 
111  beyond 
i'er  other 
titutional 

1869, 


J 


1 


IMPERIAL  CONTROL  OVER  COLONIAL  LEGISLATION.      145 

North  America  act,  the  dominion  parliament,  in  18G9,  re- 
enacted,  by  their  own  authority,  the  clause  of  the  imperial 
statute  which  fixed  the  p?.lary  of  the  governor-general,  at 
£10,000  sterling,  equal  to  $48,606.63 ;  the  same  to  be  payable 
out  of  the  consolidated  revenue  of  Canada.  This  act  was 
necessarily  reserved,  under  the  royal  instructions ;  but  it  re- 
ceived the  assent  of  her  Majesty  in  council  on  August  7, 1869. 
From  this  date,  no  further  attempt  has  been  made  to  reduce 
the  salary  of  the  governor-general. 

On  Dec.  17,  1869,  the  secretary  of  state  for  the  colonies  Criminal 
notified  the  governor-general  of  Canada,  in  regard  to  certain  tutes^.'*" 
acts  passed  by  the  dominion  parliament  in  the  previous  ses- 
sion of  parliament,  that  her  Majesty  would  not  be  advised  to 
exercise  her  power  of  disallowance  with  respect  thereto  ;  but 
that  he  observed  that  the  third  section  of  "  an  act  respecting 
perjury  "  assumed  to  affix  a  criminal  character  to  acts  com- 
mitted beyond  the  limits  of  the  dominion.  "  As  such  a  pro- 
vision is  beyond  the  legislative  power  of  the  Canadian  parlia- 
ment," the  colonial  secretary  requested  the  governor-general 
to  bring  this  point  to  the  notice  of  his  mhiisters,  with  a  view 
to  the  amendment  of  the  act  in  this  particular.**  Accordingly, 
in  the  ensuing  session  of  tlie  dominion  parliament,  an  act 
was  passed  to  correct  this  error." 

On  May  12,  1870,  an  act  passed  by  the  parliament  of  the  Provincial 
dominion  of  Canada,  "to  establish  and  provide  for  the  go-  niems" 
vernment  of  the  province  of  Manitoba,"  was  assented  to  by  fstabijsh- 
the  governor-geueral  in  the  queen's  name.     While  this  act 
was  under  consideration  in  parliament,  doubts  were  expressed 
as  to  the  competency  of  the  dominion  parliament,  under  the 
British  North  America  act,  1867,  to  establish  provincial  go- 
vernments in  territories  admitted,  or  which  may  hereafter  be 
admitted,  into  the  dominion,  and  to  provide  for  the  representa- 
tion of  such  provinces  in  the  Senate  and  House  of  Commons 
of  the  dominion.     Accordingly,  upon  a  report  made  to  the 
privy  council  of  Canada  by  the  minister  of  justice  upon  this 
subject,  and  approved  by  the   governor-general,  application 
was  made  to  the  imperial  government  to  submit  a  measure  to 
the  imperial  parliament,  at  its  next  session,  for  the  purpose  of 


°  Canada  Sess.  Papers,  1870,  no.  39. 
«  Act  33  Vict.  c.  20. 
10 


O'*: 


146       PARLIAMENTARY  GOVERNMENT  IN  TIIE  COLONIES. 

qiiietinjj  these  doubts,  and  for  preventing  the  necessity  of 
repc'iited  applications  to  tlie  imperial  parlianiout  for  additional 
powers  to  enable  the  dominion  parliament  to  legislate  for  the 
udmission  of  new  provinces  into  the  dominion,  ujmn  similar 
terms  and  conditions  as  apply  to  the  provinces  already  form- 
ing part  of  the  same ;  and  also  for  the  alteration  of  the  boun- 
daries of  existing  provinces,  with  the  consent  of  the  local 
government. 

In  compliance  with  the  wishes  of  the  Canadian  government, 
the  secretary  of  state  for  the  colonies,  on  Jan.  26,  1871,  trans- 
mitted to  the  governor-general  a  draft-bill  for  effecting  the 
purposes  above  mentioned  ;  which,  being  aj)proved  in  Canada, 
was  afterwards  enacted  by  the  imperial  parliament.i' 
Oaths  bill.  On  May  3,  1873,  the  governor-general  of  Canada  (the  Earl 
of  Dufferin)  transmitted  to  her  Majesty's  secretary  of  state 
for  the  colonies  a  certified  copy  of  a  bill  "  to  provide  for  the 
examination  of  witnesses  on  oath  by  committees  of  the  senate 
and  house  of  commons  in  certain  cases,"  which  had  passed 
both  houses  of  the  Canadian  parliament,  and  received  the 
royal  assent  through  the  governor-general.  In  his  despatch, 
accompanying  this  bill.  Lord  Dufferin  explained  the  nature 
and  necessity  for  the  measure,  and  the  reasons  which  had  in- 
duced him  to  assent  to  it,  notwithstanding  the  fact  that 
doubts  had  been  expressed  whether,  on  technical  grounds, 
this  bill  was  within  the  competency  or  jurisdiction  of  the 
Canadian  parliament.  He  enclosed  a  memorandum  from  the 
minister  of  justice  (Sir  John  A.  Macdonald),  giving  expres- 
sion to  these  doubts  and  desiring  that  they  might  be  consi- 
dered by  her  Majesty's  government. 

On  June  30,  1873,  the  secretary  of  state  for  the  colonies 
notified  the  governor-general  that,  upon  the  advice  of  the 
law  officers  c^  the  Crown,  her  Majesty  had  agreed  to  an 
order  in  council,  disallowing  the  act  in  question,  upon  the 
ground  that  it  was  ultra  vires,  as  being  contrary  to  the  ex- 
press terms  of  the  eighteenth  section  of  the  British  North 
America  act.  He  also  pointed  out  that  the  Act  31  Vict.  c.  24, 
passed  by  the  Canadian  parliament  in  1868,  for  the  purpose 
of  conferring  upon  the  senate   the   power  of  administering 


i 


if 


\ 


1 


p  Canada  Sess.  Papers,  1871,  no.  20,  pp.  13G-141 ;  Imp.  Act  34  and 
35  Vict.  c.  28. 


__>^ 


»4r^  «>«^  '^. 


Dlonies 
of  the 
to  an 
311  the 
le  ex- 
North 
C.24, 
irj)0se 
taring 

M  and 


IMPKKIAL  CONTROL  OVER  COLONIAL  LEGISLATION.      147 

oaths  to  witnesses  at  their  bar,  —  though  it  appears  to  have 
escaped  observation,  and  was  not  disallowed,  —  was  neverthe- 
less "void  and  inoperative  as  being  repugnant  to  the  provi- 
sions of  the  British  North  America  act,  and  cannot  be  legally 
acted  upon."  i 

By  an  act  of  the  imperial  parliament,  passed  in  1875,  the 
eighteenth  section  of  the  British  North  America  act,  afore- 
said, was  repealed,  and  a  new  provision  substituted,  under 
which  it  wa/>  declared  to  be  competent  to  the  parliament  of 
Canada  to  pass  any  act  to  define  the  privileges,  immunities, 
and  powers  of  either  house,  and  of  the  members  thereof, 
respectively ;  but  so  that  the  same  shall  not  exceed  those 
held  and  exercised  by  the  imperial  House  of  Commons  at  the 
time  of  the  passing  of  such  act.  This  statute,  likewise,  gave 
validity  to  the  Canadian  act  of  1868,  which  was  declared  to 
have  been  invalid,  because  of  its  repugnancy  to  the  imperial 
act  of  1867.  •• 

In  the  session  of  the  parliament  of  Canada  held  in  1872,  a  Copyright 
bill  Avas  passed,  "  to  amend  the  act  respecting  copyrights,"  Jio,',*'*' 
which  was  reserved  for  the  signification  of  her  Majesty's 
pleasure.  On  May  16, 1874,  the  governor-general  transmitted 
to  the  secretary  of  state  for  the  colonies  copies  of  resolutions, 
adopted  by  the  Senate  and  House  of  Commons,  urging  that 
the  royal  assent  should  be  given  to  this  bill ;  and  represent- 
ing that  the  two  years,  within  which  (under  the  fifty-seventh 
section  of  the  British  North  America  act,  1867)  it  would  be 
competent  for  the  assent  of  the  queen  in  council  to  be  signi- 
fied to  the  same,  would  expire  on  June  14  next.  In  his  reply, 
dated  June  15, 1874,  the  colonial  secretary  stated  that  he  had 
been  unable  to  advise  her  Majesty  to  assent  to  this  bill,  be- 
cause certain  provisions,  contained  therein,  are  in  conflict 
with  imperial  legislation  in  regard  to  copyright.  Moreover, 
the  validity  of  the  bill  would  not  have  been  established,  even 
if  her  Majesty  had  been  pleased  to  assent  to  it ;  inasmuch  as  it 
was  "repugnant"  to  an  imperial  act  extending  to  the  colony, 


't 


^  Canada  Commons  Journals, 
Oct.  23,  1873,  pp.  5-lL>;  Commons 
Papers,  1874,  vol.  xlv.  pp.  3-9. 

■•  Imp.  Act  38  and  39  Vict.  c.  38; 
Canada  Sess.  Papers,  1876,  no.  45. 


Accordingly,  in  1870,  the  oaths  bill, 
disallowed  merely  upon  technical 
grounds,  was  re-enacted  by  the 
Canadian  parliament.  (Can.  Stats. 
39  Vict.  c.  7.) 


148      PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


Marine 
tele- 
graphs. 


and  therefore  by  the  second  section  of  the  Colonial  laws  vali- 
dity act,  of  1865,  is  absolutely  void  and  inoperative.^ 

In  1874,  a  bill  was  passed  '^y  both  houses  of  the  parliament 
of  Canada,  entitled,  "  an  act  to  regulate  the  construction  and 
maintenance  of  marine  electric  telegraphs."  In  conformity 
with  the  seventh  paragraph  of  the  royal  instructions,  and  upon 
the  advice  of  the  minister  of  justice,  his  Excellency  the  gover- 
nor-general reserved  this  bill  for  the  signification  of  her  Majes- 
ty's pleasure.  The  Anglo-American  telegraph  company  had  op- 
posed the  passage  of  the  bill,  but  their  objections  to  it  had 
been  overruled  by  the  Senate  ;  and  the  privy  council,  while 
advising  its  reservation,  out  of  deference  to  tlie  royal  instruc- 
tions, and  because  it  "  may  possibly  be  considered  to  preju- 
dice the  interests  and  rights  of  property  of  hci'  Majesty's  sub- 
jects not  residing  in  Canada,"  expressed  their  conviction  that 
the  measure  was  calculated  to  be  highly  beneficial  to  Canadian 
interests,  and  also  was  in  accordance  with  the  established 
policy  of  the  country.  They  therefore  prayed  that  it  might 
receive  the  royal  assent  at  an  early  date. 

Meanwliile,  the  Anglo-American  telegraph  company  peti- 
tioned the  governor-general  in  council  that  the  bill  might  not 
be  allowed  to  become  law  ;  but  they  were  informed  that,  the 
bill  being  now  in  the  hands  of  the  imperial  authorities,  the 
subject  was  no  longer  open  for  the  consideration  of  the  go- 
vernment of  Canada. 

Numerous  representations  were  made  to  her  Majesty's 
secretary  of  state  for  the  colonies,  both  for  and  against  the 
confirmation  of  this  bill.  But  on  Oct.  29,  1874,  he  wrote  to 
the  governor-general,  intimating  that,  while  lie  entirely  appre- 
ciated the  reasons  which  induced  the  Canadian  ministers  to 
advise  the  reservation  of  the  same,  he  felt  that  he  could  not 
properly  assume  the  function  of  deciding  between  the  con- 
flicting views  expressed  in  regard  to  the  policy  embodied  in 
this  measure.  He  had  therefore  decided  to  tender  no  advice 
to  her  Majesty  respecting  it. 

lie  added  that  "  it  seems  to  me  to  be  clearly  within  the 
competency  of  the  dominion  government  and  j)arliament  to 
legislate"  upon  this  subject, '' without  any  interference  on 
the  part  of  the  government  of  this  country."     It  being  a  local 


Canada  Scss.  Papers,  1875,  no.  28. 


IMPERIAL  CONTROL  OVER  COLONLIL  LEGISLATION.      149 

question,  *'  involving  no  points  in  respect  of  which  it  would 
appear  necessary  that  imperial  interests  should  be  guarded, 
or  the  relations  of  the  dominion  with  other  colonial  or  foreign 
governments  controlled."  "  It  is  obvious  that  if  the  inter- 
vention of  her  Majesty's  government  were  liable  to  be  invoked 
whenever  Canadian  legislation  on  local  questions  affects,  or  is 
alleged  to  affect,  the  property  of  absent  persons,  the  measure 
of  self-government  conceded  to  the  dominion  might  be  re- 
duced within  very  narrow  limits.  It  is  to  the  dominion 
government  and  legislature  that  persons  concerned  in  the 
legislation  of  Canada  on  domestic  subjects  and  its  results 
must  have  recourse  ;  and  this  government  cannot  attempt  to 
decide  upon  the  details  of  such  legislation  without  incurring 
the  risk  of  those  complications  which  are  consequent  upon  a 
confusion  of  authority." 

It  having  been  decided  by  her  Majesty's  government  to 
take  no  action  with  respect  to  this  reserved  bill,  in  order  that, 
if  thought  desirable  in  Canada,  a  new  bill  might  be  intro- 
duced into  the  dominion  parliament  next  session,  the  secre- 
tary of  state  for  the  colonies,  in  reply  to  a  communication 
from  the  government  of  Newfoundland,  in  regard  to  certain 
rights  presumed  to  accrue  to  parties  under  an  act  passed 
by  the  Newfoundland  legislature,  advised  that  those  rights 
should  be  submitted  to  judicial  determination  by  the  Supreme 
Court  of  the  colony.  And  that  it  would  be  of  advantage  for 
the  government  of  Newfoundland  to  confer  with  the  domi- 
nion government  in  relation  to  the  best  mode  of  settling 
what,  if  any,  payments  might  be  necessiiry  for  satisfying  such 
rights.* 

In  the  following  session  of  the  dominion  parliament,  a  new 
bill  to  regulate  the  construction  and  maintenance  of  marine 
electric  telegraphs  was  introduced ;  and  after  undergoing 
considerable  modification  in  both  houses,  for  the  purpose  of 
meeting  the  views  of  contending  parties,  it  was  passed  and 
assented  to  by  the  governor-general." 

Tiie  imperial  merchant  shipping  act  of  1876  contains  cer- 
tain general  provisions  applicable  to  vessels  trading  with 
Canada.     But  the  forty-fourth  section  of  this  act  declares 


1^ 


I 


,      I 


Morcliant 

sliipping 

act. 


'  Canada  Ross.  Papers,   1875,  no.  20. 

■  Act  38  Vict.  c.  12G;  and  see  Canada  Sess.  Papers,  1877,  no.  119. 


» 


1  ^  ll 


Supremo 
Court  act. 


150       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

that  the  regulations  in  respect  to  deck  cargoes  shall  not 
apply  to  ships  engaged  in  the  coasting-trade  of  any  British 
possession,  and  that  no  part  of  the  act  shall  apply  to  any 
vessel  trading  exclusively  in  colonial  inland  waters.  In  1878, 
however,  a  bill  was  passed  through  the  dominion  parliament 
to  repeal,  "  as  respects  all  ships  while  in  the  waters  of  Cana- 
da," from  and  after  the  time  which  may  be  fixed  for  that 
purpose  by  a  proclamation  issued  by  her  Majesty  in  corricil, 
the  twenty-third  section  of  the  said  statute,  which  regulates 
the  space  occupied  by  deck  cargoes  Avhich  shall  be  liable 
for  tonnage  dues.  This  act  was  not  allowed  by  her  Majesty's 
government,  inasmuch  as  it  claimed  to  legislate  not  merely 
for  Canadian  shipping,  and  for  vessels  specially  exempted  by 
the  forty-fourth  section  above  mentioned,  from  the  operation 
of  the  imperial  act,  but  likewise  for  "  all  sliips '  while  in 
Canadian  waters.  Such  a  provision  was  obviously  in  excess 
of  the  powers  of  the  Canadian  parliament.  In  making  known 
to  the  Canadian  government  their  disapproval  of  this  act,  the 
imperial  board  of  trade  suggested  that  another  act  might  be 
passed  on  the  subject,  but  limited  in  its  operation  to  ships 
over  which  the  dominion  government  could  exercise  con- 
trol.^ 

Furthermore,  upon  the  introduction  into  the  Canadian  par- 
liament in  1875,  of  a  bill  to  create  a  supreme  court  for  the 
dominion,  it  was  the  expressed  intention  of  ministers  to  have 
prohibited  any  further  appeals  to  her  Majesty's  privy  council. 
They  were  notified,  however,  that  the  bill  could  not  be  sanc- 
tioned unless  it  preserved  to  the  Crown  its  rights  to  hear  the 
appeals  of  all  British  subjects,  who  might  desire  to  appeal  in 


'  Private  information  from  the 
Marino  and  Fisiierics  Department 
of  Canadn,  in  March,  1870.  In  the 
session  of  1S71>,  the  Canada  parlia- 
ment passiid  another  act  respecting 
the  tonnage  of  sliips,  which  was  ex- 
pressly limited  to  vessels  amenahlc 
to  Cana<lian  law.  (12  Vict.  c.  L*l.) 
Upon  the  same  principle,  tlie  colo- 
nial .secretary,  in  a  dt'sj)atch  to  the 
Sovernor  of  New  Zealand,  dnted 
lay  3,  1H78,  whilst  admitting  that, 
•'  .so  far  as  relates  to  commniiication 
with  the  shore  and  with  the  ship- 
pin,.;  in  colonial  waters,  her  Ma- 


iesty's  ships  .should  be  subject  to 
local  quarantine  regulations,  in  the 
same  manner  as  merchant  .ships," 
yet  desiied  that  instructions  might 
be  i.ssued,  by  the  government  of 
the  colony,  to  forliid  the  local 
authorities  in  any  way  to  interfere 
with  the  internal  management  of 
iier  Majesty's  shins,  or  with  their 
freedom  to  proceed  to  sea  wlienever 
the  otiicer  in  command  may  deem 
such  course  reipiisite.  (New  Zea- 
land I'iirl.  I'apers,  1878,  appx. 
A.  'J,  p.  10.) 


I 


\ 


tl 
ss 
re 

C( 

w| 

oi 


I 


IMPERIAL  CONTROL  OVER  COLONIAL  LEGISLATION.      151 


ject  to 
in  the 
lips," 
night 
nt  of 
ncal 
crl'ere 
lit  «)f 
tiieir 
never 
dt'(!in 
Zou- 
aj^px. 


I 


the  ultimate  resort  to  the  queen  in  council.  Accordingly,  a 
saving-clause  to  that  effect  was  inserted  in  the  bill,  and  it 
received  the  royal  assent.^' 

We   would    now   invite    attention   to   various   pre-  in  Aus- 
cedents  that  have  arisen  in  the  Australian  colonies,  ^^'^^^''^' 
which  illustrate  the  extent  of  the  control  now  exercised 
by  the  queen  in  council  over  legislation  in  that  part 
of  the  empire. 

In  1858,  the  governor  of  New  South  Wales  informed  her  Asspss- 
Majesty's  secretary  of  state  for  the  colonies  that  a  bill,  inti-  pl^JJur^". 
tuled  an  act  to  impose  an  assessment  on  runs,  and  to  increase 
the  rent  of  lands  leased  for  pastoral  purposes  in  the  colony, 
had  passed  both  houses,  and  had  been  tendered  to  him  for 
his  assent,  on  behalf  of  the  Crown.  On  consulting  the  colo- 
nial law  officers  in  regard  to  this  bill,  he  had  received  from 
them  two  separate  reports,  —  one  from  the  solicitor-general 
certifying  to  its  legality,  the  otlier  from  the  attorney-general 
disputing  tlie  same.  Under  these  circumstances,  the  governor 
decided  to  act  on  his  own  judgment,  and  he  gave  the  royal 
assent  to  the  bill.  But  he  deemed  it  to  be  his  duty  to  report 
the  case  to  the  coloni.il  secretary. 

In  reply  to  this  reference,  Earl  Carnarvon  informed  the 
governor  that  the  imperial  government  had  decided,  for  cer- 
tain reasons  which  he  explained,  to  permit  the  act  to  remain 
in  operation,  notwithstanding  its  doubtfnl  legality.  If  the 
act  were  illegal,  it  was  open  to  any  aggrieved  person  to 
seek  for  redress  from  its  requirements  by  an  action  at  law. 
Should  the  repugnance  of  the  act  to  inqierial  legislation  be 
conclusively  established  by  a  decision  of  a  competent  court, 
it  would  be  disallowed ;  provided  that  the  time  limited  for 
such  an  exercise  of  the  prerogative  should  not  then  have 
expired." 

In  1806,  a  ministerial  crisis  occurred  in  Queensland.  Ow- 
ing to  serious  financial  embarrassments  in  that  colony,  minis- 
ters had  tendered  to  the  governor  (Sir  G.  F.  Howen)  their 
advice  that,  in  order  to  sustain  the  public  credit,  there  should 


"  Lord    Norton,   in   Nineteenth  *  New  South  Wales  Le£r.  Assem* 

Century,  July,   IHTO,   j).    173;    Ca-     My   Votes,    1859-60,    vol.   iii.  p. 
nadii  Act,  3S  Vict.  c.  11,  sec.  47.         Oil. 


;!l 


li 


v^ 


»i 


ll 


Ill 


it 


S*     ) 


pi  < 

'  .1     ■!■ 


I      I    I 


II 


I 


152       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

Paper  cur-  be  an  immediate  issue  of  inconvertible  paper  currency,  in  the 
shape  of  legal  tender  notes,  to  an  amount  not  exceeding 
two  hundred  thousand  pounds^  The  governor  demurred  to 
this  proposal,  inasmuch  as  he  was  expressly  forbidden,  by  the 
royal  instructions  —  "  which  are  a  part  of  the  constitutional 
law  of  the  colony  "  —  to  assent  to  any  bill  of  this  nature, 
unless  upon  urgent  necessity,  as  aforesaid/  He  distinctly 
declared  thf,t  in  no  event  would  he  give  the  royal  assent  to 
any  such  bill.  He  suggested,  however,  another  mode  of 
meeting  the  financial  ditticulty,  viz.,  by  obtaining  legislative 
sanction  to  the  issue  of  treasury  bills,  coupled  with  the  impo- 
sition of  additional  taxation ;  a  course  which  had  proved  suc- 
cessful, under  similar  circumstances,  in  other  colonies  and  in 
the  mother  country. 

Ministers  refused  to  entertain  these  suggestions,  and  ad- 
hered to  their  own  plan.  And  they  sought  to  persuade  the 
governor  that  he  would  be  amply  warranted,  in  the  emer- 
gency, in  following  their  advice. 

The  governor,  on  his  own  part,  was  equally  inflexible.  He 
reminded  his  ministers  that,  in  all  purely  colonial  questions, 
he  had  invariably  accepted  the  recommendations  of  his  con- 
stitutional advisers,  even  when  his  individual  opinic  n,  in  im- 
portant cases,  had  differed  from  theirs ;  believing  it  to  be  his 
duty  to  give  all  just  and  lawful  support  to  his  ministers,  to- 
gether with  the  result  of  his  own  knowledge  and  experience, 
in  local  questions.  But  in  this  case,  where  imperial  interests 
were  concerned,  he  felt  that  his  duty  to  the  Crown  and  to  the 
colony  alike  required  him  to  refuse  his  sanction  to  the  pro- 
posed measure ;  more  especially  as  he  failed  to  perceive  any 
*'  urgent  necessity  "  that  would  justify  him  in  having  recourse 
to  such  an  extraordinary  and  questionable  proceeding,  until, 
at  any  rate,  the  ordinary  measures  of  relief  should  have  been 
tried  in  vain.  Whereupon  the  Macalister  administration  ten- 
dered their  resignations,'  which,  however,  the  governor  re- 
fused to  receive. 

But,  with  a  view  to  conciliation,  the  governor  intimated  his 
willingness  to  waive  the  strict  constitutional  rule  that,  "  to 
all  important  acts  by  which  the  Crown  becomes  committed. 


7  Queensland,  Leg.  Assembly  Journals,  1866,  p.  052. 
■  fcjeo  ante,  p.  132. 


IMPERIAL  CONTROL  OVER  COLONIAL  LEGISLATION.      153 

the  sanction  of  the  sovereign  (or  of  her  representative)  must 
be  previously  signified ; "  and  to  permit  the  introduction  in 
parliament  of  their  financial  scheme,  pending  his  communi- 
cation thereupon  with  the  secretary  of  state ;  reserving  his 
final  decision  thereon  until  the  measure  should  have  passed 
both  houses,  and  be  presented  to  him  for  the  royal  assent/ 

Meanwhile,  as  much  misapprehension  prevailed  as  to  the 
nature  and  extent  of  the  impediment  which  was  known  to 
exist  to  the  proposed  legislation  at  this  financial  crisis,  the 
governor  consented,  at  the  earnest  request  of  the  premier,  to 
the  immediate  production  of  his  correspondence  with  minis- 
ters in  parliament ;  deprecating,  however,  the  slightest  desire 
to  interfere  with  the  privileges  or  influence  the  deliberations 
of  parliament  by  such  a  step.** 

But,  on  the  following  day,  ministers  again  tendered  their 
resignations  ;  and  his  Excellencv  reluctantly  accepted  them,  — 
being  aware  that  they  possessed  the  confidence  of  the  Assem- 
bly, in  their  general  policy,  and  being  of  opinion  that  the 
point  of  difference,  on  a  question  to  be  determined  on  impe- 
rial considerations,  did  not  necessitate  their  retirement.  The 
governor,  however,  had  no  difficulty  in  obtaining  other  advis- 
ers. A  new  ministry  was  at  once  formed,  by  Mr.  R.  G.  Her- 
bert, which  proved  acceptable  to  both  houses.*' 

The  Herbert  administration  met  the  emergency  by  the  im- 
mediate introduction  of  a  bill  authorizing  the  issue  of  trea- 
sury bills,  to  the  amount  of  three  hundred  thousand  pounds, 
which  sum  was  deemed  to  be  sufficient  to  cfirry  the  colony 
through  its  commercial  crisis.  Tiiis  bill  passed  both  houses, 
and  received  the  royal  assent  within  four  days.** 

Afterwards,  certain  of  the  colonists  petitioned  the  queen 
for  Sir  G.  Bowen's  recall,  because  of  his  action  in  this  mat- 
ter, and  his  alleged  unconstitutional  inducement  of  a  change 
of  ministry.  This  petition  was  transmitted,  through  the  go- 
vernor, to  her  Majesty.  But  the  popular  resentment  against 
the  governor  speedily  subsided  ;  and  he  continued  to  enjoy 
the  respect  and  confidence  of  the  people  of  Queensland,  for 
the  ability  and  energy  he  had  displayed  in  the  government  of 


I : 


•  See  further  on  this  point,  /w,s7,  «  Ibid.  p.  183 ;  Votes  of  1867, 

p.  434.  p.  81. 

''  (Queensland     Leg.     Assembly,  •*  Leg.    Assembly  Votes,  1866, 

VoU's,  1866,  pp.  437-417.  pp.  181-187;  Votes  of  1867,  p.  83. 


«- 


m 


r 


!  i 


Chinese 
iminiurra- 
tioii  into 
Quccns- 
luud. 


154       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


go- 


the  colony,  until  his  promotion,  in  December,  1867,  to  be 
vernor  of  New  Zealand."  A  formal  answer  was  given  to  this 
petition,  which  was  published  in  the  "  Official  Gazette  ;  "  and, 
in  a  separate  despatch,  the  colonial  secretary  (Lord  Carnar- 
von) expressed  his  entire  approval  of  the  governor's  conduct 
on  this  occasion.' 

In  1876,  a  bill  was  passed  through  both  houses  of  the 
Queensland  parliament,  entitled  "a  bill  to  amend  'the  gold- 
fields  act  of  1874,'  so  far  as  relates  to  Asiatic  .ind  African 
aliens,"  under  which  an  increased  license-fee  was  authorized 
to  be  collected  from  such  aliens,  with  the  view  to  discou- 
rage excessive  immigration  from  China. 

Whereupon,  the  governor,  Mr.  (now  Sir  W.)  Cairns,  re- 
quested the  colonial  attorney-general  to  furnish  him  with  a 
special  report  upon  this  bill :  intimating  whether,  in  his  opinion, 
there  was  any  objection  to  the  governor  giving  the  royal  assent 
to  it ;  or  whether,  under  the  royal  instructions,  or  pursuant  to 
any  existing  law,  his  Excellency  should  withhold  his  assent, 
or  reserve  the  bill  for  the  signification  of  the  royal  pleasure. 

The  attorney-general,  in  reply,  stated  that  in  his  opinion 
the  bill  contained  nothing  which  would  necessitate  that  the 
royal  assent  should  be  withheld  from  it,  or  that  it  should  be 
reserved  for  the  consideration  of  the  Crown.  In  support  of 
this  conclusion,  he  quoted  several  precedents. 

Notwithstanding  the  respect  which  he  entertained  for  the 
opinion  of  the  attorney-general.  Governor  Cairns  was  still  per- 
suaded that  it  was  his  duty  to  reserve  this  bill  for  imperial 
consideration ;  inasmuch  as  he  deemed  it  to  be  of  an  extra- 
ordinary nature,  and  as  possibly  involving  a  breach  of  in- 
ternational comity,  by  imposing  restraints  upon  Chinese 
immigrating  into  Queensland,  contrary  to  the  princii)le 
which  the  British  government  imposed  on  China,  by  the 
treaty  of  Tien-Tsin,  as  regards  the  treatment  of  foreigners 
by  that  nation,  and  especially  at  variance  with  the  fifth  arti- 
cle of  the  convention  signed  at  Pekin,  on  Oct.  24,  1860.  The 
exceptional  and  extraordinary  amount  of  the  license  proposed 
to  be  imposed  by  this  l)ill  upon  Chinese  immigrants  is  appa- 
rent, from  the  fact  that  the  fee  for  an  ordinary  miner's  license 


Wf 

licl 
cal 
an| 

inj 
bill 


l!i 


•  Lojy.  AsseiTiMy  Votes,  1867,  p.  37;  Adderley,  Colonial  Policy,  p.  37. 
'  Leg.  Asaeinbly  Votes,  1867,  p.  b^;  and  see  ante,  p.  DO. 


IMPEllIAL  CONTROL  OVER  COLONIAL  LEGISLATION.      155 


1.37. 


was  ten  shillings,  with  a  charge  of  four  pounds  for  a  business 
license  ;  whereas  this  bill  provided  that  all  "  Asiatic  or  Afri- 
can aliens"  should  pay  three  pounds  for  a  miner's  license, 
and  ten  pounds  for  a  business  license.  The  governor,  accord- 
ingly, notified  the  prime  minister  that  he  should  reserve  this 
bill  for  the  signification  of  the  royal  pleasure  thereon. 

On  their  part,  ministers  were  unanimously  agreed  that  the 
bill  was  within  the  competency  of  the  colonial  legislature,  and 
that  the  governor  was  not  required  to  reserve  it.  In  com- 
municating this  opinion  to  the  governor,  they  observed  that 
they  felt  it  "  to  be  of  the  utmost  importance  that  the  autho- 
rity of  the  colonial  legislature  to  pass  laws  upon  all  subjects 
v/hatever  which  they  may  think  necessary  for  the  good  go- 
vernment of  the  colony  should  be  recognized  and  upheld,  and 
that  no  other  limit  to  that  power  should  be  admitted  than 
that  which  is  imposed  by  the  royal  instructions  to  the  gover- 
nor. They  think  that,  to  go  beyond  those  instructions,  or  to 
allow  the  unusual  character  of  proposed  legislation  not  for- 
bidden by  them  as  a  sufficient  ground  for  not  giving  immedi- 
ate effect  to  the  wish  of  the  legislature,  would  be  of  serious 
consequence  to  the  independence  and  freedom  of  parlia- 
ment." Tiiey,  therefore,  advised  that  the  governor  should 
assent  to  this  bill. 

His  Excellency,  however,  decided  that  it  was  incumbent 
upon  him  to  reserve  the  bill  for  the  signification  of  the  royal 
pleasure  ui)on  it.  In  transmitting  it  to  her  Majesty's  secre- 
tary of  state  for  the  colonies,  he  recapitulated,  in  a  despatch 
dated  Oct.  11, 187(3,  his  reasons  for  so  doing. 

In  reply,  the  earl  of  Carnarvon  (the  colonial  secretary),  in 
a  despatch  dated  March  27, 1877,  expressed  his  approval  of  the 
governor's  conduct,  and  of  the  reasons  which  had  actuated 
him.      For  these  reasons,  he  added,  as  well  as  upon  otlier 
grounds,  —  although  he  was  most  unwilling  even  to  appear 
to  infringe  upon  the  privileges  of  self-government  enjoyed  by 
the  inhabitants  of  Queensland,  —  he  had  been  unable  to  ad- 
vise the  queen  that  this  bill  should  receive  tlie  royal  assent  in 
its  present  shape.     He  admitted  that  similar  legislation  ha<l  fliinosc 
been  agrr^ed  to  by  the  colony  of  Victoria  (in  1855,  and  later  tion  imi) 
}  jars,  and  consolidated  in  1864,  by  the  Act  27  Vict.  no.  200),  Austmlia. 
and  by  New  South  Wales  (in  1861,  &c.,  by  the  Acts  25  Vict. 
no.  3,  and  31  Vict.  no.  8),  and  that  her  Majesty  had  not  been 


r 


i 
I 


156       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


i 


advised  to  disallow  any  of  those  acts,  although  at  the  time 
the  colonial  secretary  had  remonstrated,  and  declared  the  un- 
questionable fact  "  that  exceptional  legislation,  intended  to 
exclude  from  any  part  of  her  Majesty's  dominions  the  sub- 
jects of  a  state  at  peace  with  her  Majesty,  is  highly  objectiona- 
ble in  principle."  But,  since  then,  these  acts  had  been 
repealed,  to  the  great  satisfaction  of  her  Majesty's  govern- 
ment. Adverting  to  the  contention  of  the  local  ministry 
that  there  should  be  no  limit  to  the  power  of  the  colonial 
legislature  to  pass  laws,  other  than  that  which  is  distinctly 
imposed  by  tlie  royal  instructions  to  the  governor,  Lord  Cjir- 
narvon  presume*^  that  "  this  apparently  unqualified  statement 
was  to  be  taken  ;  bwUig  made  subject  to  the  paramount  au- 
thority of  the  In.^  ■■U  "^^arliaraent,  and  the  power  of  disallow- 
ance expressly  res.  ved  t>  her  Majesty  by  the  Constitutional 
act."  Not  dissenting  from  '  ue  statement  of  ministers,  as  to 
the  powers  and  functions  of  the  Queensland  parliament,  so 
far  as  relates  to  matters  of  purely  internal  concern, —  with 
which  the  local  parliament  is  competent  to  deal,  —  the  secre- 
tary of  state  was  nevertheless  of  opinion  that  Governor 
Cairns  "  had  no  alternative,  under  the  eleventh  section  of  his 
instructions,  but  to  reserve  the  bill ;  inasmuch  as  it  is  one  of 
an  extraordinary  nature,  whereby  the  rights  of  her  Majesty's 
subjects  not  residing  in  the  colony  may  be  prejudiced." 

Consequent  upon  the  disallowance  of  this  bill,  the  premier 
of  the  Queensland  administration  addressed  a  circular  letter, 
dated  April  20,  1877,  to  the  agent-general  of  the  colony  in 
England  (for  the  information  of  Lord  Carnarvon)  and  to 
the  chief  secretaries  of  the  sister  colonies  in  Australasia,  urg- 
ing the  necessity  that  the  colony  of  Queensland  should  be  at 
liberty  to  encourage  or  to  discourage,  at  her  unfettered  dis- 
cretion, immigration  from  China ;  and  that  the  existence  of 
international  obliijations  between  Great  Britain  and  the  em- 
pire  of  China  should  not  be  made  a  pretext  for  forcing  upon 
Queensland  a  Ciiinese  population,  against  her  wishes  or  inter- 
ests. This  circular  invited  the  several  Australasian  govern- 
ments to  a  joint  agreement  with  Queensland  in  some 
principles  of  action  which  would  sustain  the  colony  in  the 
exercise  of  its  rights  as  a  self-governing  community. 

In  reply  to  this  communication,  the  colonial  secretary  of 
New  South  Wales  wrote  to  the  colonial  secretary  of  Queens- 


IMPERIAL  CONTROL  OVER  COLONIAL  LEGISLATION.      157 


at 


land,  expressing  sympathy  in  any  well-devised  scheme  to 
arrest  the  excessive  immigration  of  Asiatic  and  African  aliens 
into  the  northern  part  of  Australia,  but  submitting  that  the 
aforesaid  "  despatch  from  the  secretary  of  state  does  not  ap- 
pear to  have  been  inspired  by  any  spirit  opposed  to  the  con- 
stitutional rights  of  Queensland.  Heing  integral  parts  of  the 
empire,  the  colonies  must  clearly  be  subject  to  *he  obligations 
of  the  empire  ;  and  it  is  no  more  than  the  duty  of  the  impe- 
rial authorities  to  guard  against  local  acts  of  legislation  con- 
flicting with  the  honour  of  the  Crown.  In  the  present 
instance,  there  does  not  appear  to  be  any  just  ground  for 
anticipating  that  her  Majesty  will  be  finally  advised  to  with- 
hold assent  from  any  measure  for  the  protection  of  the  peo- 
ple of  Queensland  which  respects  imperial  obligations,  and 
does  not  exceed  the  necessities  of  the  case."  However,  on 
July  4,  1877,  the  Legislative  Assembly  of  New  South  Wales 
passed  an  address  to  the  governor,  expressing  their  ympath}'- 
with  Queensland,  in  its  endeavours  to  obtain  protc  tie:  from 
the  dangers  of  excessive  Chinese  immigration,  a'  1  tl-e.r  de- 
sire that  the  administration  should  represent  to  the  imperial 
government  the  expediency  of  endeavouring  to  c^^tain  from 
the  Ciiinese  government  such  a  modification  of  existing  treaty 
stipulations  as  would  enable  restrictions  to  be  i  ,ced  upon  the 
present  exceedingly  undesirable  flood  of  Chinese  people  com- 
ing into  Australia. 

None  of  the  other  Australian  governments  appear  to  have 
coincided  with  the  Queensland  administration,  in  the  extrava- 
gant opinions  they  expressed  in  regard  to  the  exercise  of  the 
royal  prerogative  by  the  governor  upon  this  occasion.* 

Her  Majesty's  secretary  of  state  for  the  colonies  having,  in 
his  despatch  of  March  27,  1877,  above  quoted,  expressed  his 
willingness  to  co-operate  with  the  administration  of  Queens- 
land in  dealing  with  the  very  difficult  question  of  Chinese 
immigration,  in  any  way  that  might  be  consistent  with  equity 
and  sound  policy,  a  new  bill  to  amend  the  gold  fields  act  of 
1874,  so  far  as  related  to  Asiatic  and  African  aliens,  was 
passed  by  the  Queensland  legislature,  in  1877.  This  act  was 
free  from  the  most  objectionable  features  in  the  act  which  had 
been  disallowed. 


«  Queensland  Pail.  Papers,  1876-78. 
Council  Journals,  1876-77,  pp.  2113-221. 


New  South  "Wales  Legislative 


^  i 


.1 


,i 


158       PARLIAMFNTARY  GOVERNMENT  IN  THE  COLONIES. 


Cliint'se 
ituiiiiKra- 
tion  into 
Australia. 


ri 


In  the  same  session,  the  Queensland  legislature  passed 
another  act  "  to  regulate  the  immigration  of  Chinese,"  and  to 
prevent  theui  from  becoming  a  charge  upon  the  colony.  By 
this  statute,  a  poll-tax  of  ten  pounds  was  imposed  upon  every 
Chinese  immigrant;  but,  upon  his  leaving  the  colony,  for  fo- 
reign parts  within  three  years,  having  meanwhile  abstained 
from  criminal  offences  and  defrayed  the  cost  of  any  treatment 
he  might  have  received  in  any  public  hospital  or  asylum,  it 
was  provided  that  this  sum  should  be  refunded. 

These  acts  were  amended  in  1878.  Since  they  became  law, 
they  have  been  rigidly  enforced  with  very  satisfactory  results  ; 
and  the  excessive  influx  of  an  alien  population  into  Queens- 
land has  been  materially  reduced.'' 

In  1879,  an  "  Anti-Chinese  Influx  Bill,"  drawn  chiefly  on 
the  model  of  the  Queensland  act,  was  submitted  by  ministers 
to  the  New  South  Wales  legislature.  It  passed  the  Assembly, 
but  was  rejected  in  the  Legislative  Council.' 

It  has  been  stated  that  there  are  about  ten  thousand  Chi- 
nese already  in  New  South  Wales;  in  Queensland  at  least  double 
that  number;  and  in  New  Zealand  about  five  thousand.  There 
is  accordingly  just  cause  for  alarm  at  the  intrusion  of  such  an 
excessive  proportion  of  heathen  enn' grants  into  British  terri- 
tory, lest  it  should  effect  the  gradual  transformation  of  the 
Christian  colonies  of  Australasia  into  Asiatic  communities.  In 
Victoria,  there  are  comparatively  few  Chinese,  and  no  legisla- 
tion has  been  as  yet  directed  iigainst  them.  In  South  Austra- 
lia, the  government  have  deemed  it  expedient  to  issue  an  order 
in  council  forbidding  contractors  from  employing  Chinese 
labour  on  any  public  work  in  the  colony .-i 


••  South  Australia  Pail.  Proc. 
1877,  vol.  iii.  no.s.  91  a,  91  b.  Mr. 
ISIacali.ster'.s  paper  read  to  the  royal 
Colonial  lu.stitute  in  Dec,  1S77, 
with  the  di.scussion  thereon ;  Proc. 
of  the  Inst.  vol.  ix.  pp.  4:{-83.  Mr. 
Wisker's  paper  on  "  The  Coloured 
Man  iu  Australia,"  in  Fortnightly 
Review,  July,  1870.  See  also  the 
correspondence  between  the  foreign 
odice  and  the  Chinese  minister  iu 
London  concerning  the  appointment 
of  Chinese  consuls  in  Australia,  and 
the  reasons  given  by  the  Karl  of 
Derby  for  refusing  to  sanction  such 


appointments.  New  Zealand  Pari. 
Papers,  1878,  appx.  A.  2,  p.  18. 

'  "  The  Colonies  "  Newspaper, 
March  15  and  May  21,  1879. 

J  Fortnightly  Review,  July,  18/9, 
p.  93.  At  the  opening  of  the  New 
Zealand  Parliament,  on  July  11, 
1879,  the  governor  announced  that 
"a  bill  to  regulate  the  immigration 
of  Chinese  "  would  be  dvily  submit- 
ted. This  bill  was  to  be  framed  in 
accordance  with  the  legislation  in 
Queensland.  ( New  Zealand  Pari. 
Deb.  vol.  xxviii.  p.  417.)  And  the 
premier  presented   to   the   General 


i 


IMPERIAL  CONTROL  OVER  COLONIAL  LEGISLATION.  159 


H 


Similar  difficulties,  in  regard  to  an  excessive  and  injurious  Chinpse 
influx  of  Chinese  immigrants,  have  been  experienced  in  the  Ji'""if,t|^' 
westernmost   province   of  the  dominion  of  Canada,   IJritiah   British 
Columbia,  which  is  situated  on  the  Pacific  coast.    A  stringent  *-"^""'^'** 
law,  virtually  intended  to  prevent  Chinese  immigration,  was 
passed  by  the  provincial  legislature,  and  assented  to  by  the 
lieutenant-governor,  on  Sept.  2,  1878.'' 

An  action  was  immediately  instituted  in  the  Supreme  Court 
of  the  colony  to  test  the  validity  of  this  enactment.  On 
Sept.  23,  judgment  upon  the  case  was  delivered  by  Mr.  Jus- 
tice Gray,  who  pronounced  the  act  to  be  entirely  beyond  the 
powers  of  the  local  legislature,  and  therefore  unconstitutional 
and  void.'  It  was  afterwards  disallowed  by  the  governor- 
general  in  council. 

The  British  Columbia  legislature  could  not  dispute  the 
soundness  of  this  decision  as  a  question  of  constitutional  law. 
But  being  impressed  with  a  sense  of  the  injurious  effects 
attending  the  presence  of  so  large  a  number  of  Chinese  (esti- 
mated at  about  six  thousand)  in  a  province  the  total  popula- 
tion of  which,  at  the  last  census,  in  1871.  was  but  33,586  souls : 
of  the  pernicious  influence  of  the  Chinese,  morally  and  so- 
cially, upon  the  rest  of  the  inhabitants,  and  of  the  injury  to  the 
labour  market  from  the  unrestricted  competition  of  Chinese 
workmen,  —  the  legislature  resolved  to  address  the  dominion 
government,  calling  attention  to  these  facts,  and  requesting 
that  the  Canadian  authorities  would  co-operate  with  other 
British  colonies  in  the  endeavour  to  obtain  from  the  imperial 
government  permission  to  restrain,  if  not  entirely  to  prohibit, 
the  further  influx  of  Chinese  into  the  British  colonies,  and 
especially  into  British  Columbia.'" 


Assembly  a  memorandum  pointing 
out  tlie  need  of  regulations  to  re- 
strict excessive  Ciiinese  iminiirra- 
tion.  (New  Zealand  Pari.  I'apers 
1879,  D.  3.)  Soon  after  parliament 
was  dissolved;  but,  at  the  opening 
of  the  new  parliament  on  Sept.  25, 
the  governor  again  announced  a 
bill  on  this  subject.  The  Interna- 
tional Trades  Union  Congress, 
meeting  in  October,  1870,  at  New 
South  Wales,  unanimously  con- 
demned Chinese  immigration. 


"  Brit.  Columb.  Stats.  1878,  c.  35. 
"To  provide  for  the  b(!tter  col- 
lection of  provincial  taxes  from 
Chinese." 

'   See  pnat,  p    377. 

""  British  Col.  Leg.  Assem.  Jour- 
nals, 1879,  pp.  55,  UO,  xxiv.  And 
see  a  report  of  a  select  committee 
of  the  dominion  House  of  Com- 
mons, presented  May  11,  1879,  with 
minutes  of  evidence,  to  the  ef- 
fect "that  Chine.se  immigration 
ought  not  to  be  encouraged,"  and 


[I 


f.f 


Chincde 
immigra- 
tion into 
United 
States. 


Disallow- 
ance of 
Auatrji- 
lian  bills. 


160       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

The  impediments  in  the  way  of  the  settlement,  in  tlie  inter- 
ests mainly  of  particular  portions  of  the  community,  of  a 
question  which  involves  considerations  of  treaty  obligations 
and  of  international  rights,  are  strikingly  sliown  in  the  fact 
that  similar  legislation  by  the  state  of  California  lias  been 
pronounced  unconstitutional  by  the  Supreme  Court  of  that 
state."  And  in  1879,  the  president  of  the  United  States 
vetoed  a  bill  passed  by  Congress  which  was  intended  to  dis- 
courage Chinese  immigration.  This  bill  proposed  to  restrict 
the  number  of  Chinese  that  might  be  brought  over,  in  a  single 
voyage  to  the  United  States,  to  fifteen  persons.  In  his  mes- 
sage to  Congress,  dated  March  1,  the  president  stated  that  if 
passed  the  bill  would  virtually  annul  certain  articles  of  an 
existing  treaty  with  China  ;  that  the  power  of  modifying  trea- 
ties rested  with  the  executive,  not  with  Congress  ;  and  that 
even  the  acceptance  by  China  of  the  partial  abrogation  of 
the  treaty  would  not  justify  the  action  of  Congress,  or  render 
it  a  coinpetent  exercise  of  constitutional  authority.  An 
attempt  was  made  to  override  the  president's  veto ;  but,  for 
lack  of  the  requisite  two-thirds  majority,  it  failed.*^ 

For  further  examples  of  the  disallowance  by  the 
Crown  of  bills  passed  by  colonial  legislatures,  we  may 
note  that  of  a  bill  from  New  South  Wales  to  enable  a 
woman  to  obtain  divorce  on  the  sole  ground  of  her  hus- 
band's adultery,  the  royal  assent  to  which  was  refused  be- 


"that  Chinese  labour  ought  not  to 
be  employed  on  dominion  public 
works."  Canada  Com.  Journals, 
1879,  appx.  no.  4. 

n  See  Sing  v.  Washburn,  20  Cal. 
Rep.  5:34.  See  also,  The  People 
V.  Raymond.  34  Cal.  Rep.  492.  And 
to  the  same  effect,  the  United  States 
Circuit  Court,  in  the  Oregon  Dis- 
trict, decided,  in  the  case  of  Baker 
V.  The  City  of  Portland,  —  which 
arose  out  of  an  act  of  the  state 
legislature  to  prohibit  the  employ- 
ment of  Chinese  labourers  on  public 
works, — that  a  treaty  between  the 
federal  govenmient  and  a  foreign 
jx)wer  was  the  supreme  law  of  the 
land,  which  the  coints  were  bound 


to  enforce,  and  that  an  individual 
state  could  not  legislate  so  as  to 
interfere  with  the  operation  of  a 
treaty,  or  to  limit  the  privileges 
guaranteed  thereby.  Law  Times, 
Oct.  18,  1879,  p.  403. 

"  Cojigress  Journals,  1879.  See 
the  argument  of  J.  C.  Kennedy, 
before  the  senate  committee  on 
foreign  relations,  in  February, 
1878,  adverse  to  legislation  for  tlie 
purpose  of  restricting  Chinese  immi- 
gration into  tlie  United  States. 
Senate  Miscel.  Docts.  1877-78,  no. 
36.  For  the  views  of  the  late  O.  P. 
Morton,  ex-senator,  on  the  charac- 
ter, extent,  and  effect  of  this  immi- 
gration, see  ibid.  no.  20. 


See 
inedy, 
lee    oil 


f 


IMPERIAL  CONTROL  OVER  COLONIAL  LEGISLATION.      IGl 

cause  it  would  occasion  confusion  throughout  the  empire,  Disaiiow- 
as  to  the  status  of  persons  divorced  for  such  a  cause,  and  NutarbiS. 
of  their  offspring.  And  a  hill  from  Natal  to  legalize  mar- 
riage with  a  deceased  wife's  sister  was  disallowed,  — 
notwithstanding  that  similar  hills  had  heen  sanctioned 
in  Australia, —  hecause  "  it  did  not  appear  to  be  ur- 
gently demanded  by  the  people."  '' 


c.  In  matters  of  internal  administration. 

The  direct  interposition  of  the  Crown,  through  a  intcrpo«i- 
secretary  of  state,  in  matters  affecting  the  internal  ad-  crown  in 
ministration  of  a  self-governing  colony,  would,  in  gene-  jjj*  ^"j!jj 
ral,  be  at  variance  with  the  acknowledged  principle 
of  ministerial  responsibility  within  the  colony  in  all 
matters  of  local  concern.''  Such  interference  could  only 
be  constitutionally  invoked,  and  properly  exercised, 
under  the  following  circumstances :  (1.)  In  questions  of 
an  imperial  nature;'  (2.)  In  the  interpretation  of  impe- 
rial statutes,  which  have  assigned  to  the  imperial  authori- 
ties certain  specified  duties  on  behalf  of  the  colony,  in  the 
performance  whereof  it  would  devolve  upon  a  minister 
of  the  Crown,  responsible  to  the  Imperial  Parliament,  to 
act  and  decide,  according  to  law;"  or  (3.)  When,  either 
at  the  express  desire  or  with  the  concurrence  of  the 
local  authorities,  an  appeal  has  been  made  to  her  Ma- 
jesty's secretary  of  state  for  his  opinion  or  decision  upon 
a  point  whereon  disagreements  have  arisen,  between 
members  of  the  body-politic,  in  the  colony,  concerning 
their  respective  rights  and  privileges.* 


P  Lord    Norton,   in    Nineteenth  mons  Papers,  1878-9,  C.  2217,  p. 

Century,  July    187!),  pp.  172,  173.  74. 

«»  See  the  address  of  the  Victoria  '  See  ante,  pp.  110  el  seq.,  and 

Assembly,  of  June  4,  18(58,  and  the  poi<(,  p.  210. 

resokitions  of   that  house  in  Nov.  ■  See />«,s/,  ]>p.  104,  505. 

1809,  to  this  effect,  quoted  in  Com-  *  Hae  post,  p.  478. 

11 


I 


I 


if 


n   ij 


When  im- 
perial iii- 
torposi- 
tion  inny 
bf  in- 
voked. 


1G2       TARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

Whenever  reference  is  mjide  to  the  imperial  authori- 
ties, care  should  be  taken  that  the  claims  and  conten- 
tions of  each  party  to  the  controversy  should  be  fairly 
and  fully  submitted  to  the  consideration  of  her  Majesty's 
government.  At  the  same  time,  it  rests  with  the  secre- 
tary of  state,  on  his  own  responsibility,  to  use  his  dis- 
cretion as  to  the  means  which  he  should  adopt  to  inform 
himsejf  upon  both  sides  of  colonial  questions ;  and  it 
would  be  unbecoming  and  unwarrantable  for  the  local 
ministers  of  any  colony  to  suggest  any  limitation  upon 
this  discretion,  or  to  question  the  right  of  her  Majesty's 
secretary  of  state  to  advise  the  presentation  to  the  Im- 
perial Parliament  of  any  documents  that  he  may  think 
lit  to  submit  to  that  tribunal,  in  order  that  it  may  be 
made  acquainted  with  the  opinions  and  arguments  ad- 
vanced on  both  sides  of  a  litigated  question." 

But  even  where  the  authoritative  interposition  of  the 
imperial  government,  in  matters  of  dispute  between  a 
governor  Jind  his  constitutional  advisers,  would  be  objec- 
tionable or  of  doubtful  expediency,  —  a*  in  a  question 
of  purely  local  concern,  —  the  governor,  m  view  of  his 
position  as  an  imperial  officer  responsible  to  tli  '  Crown 
through  the  secretary  of  state  for  his  public  conduct,  is 
always  at  liljcrty  to  appeal  to  his  superior  ollicer  for 
advice  and  instructions,  whenever  he  is  called  upon  to 
exercise  the  royal  prerogative,  or  to  give  the  consent 
of  the  Crown  to  an  act  of  administration.  While,  on  the 
other  hand,  if  a  governor  should  transcend  his  lawful 
powers,  or  commit  any  act  to  which  exception  could  be 
iustly  taken,  an  appeal  is  open  to  the  secretary  of  state. 
The  right  of  a  governor  to  an  appeal  to  the  imperial 
authorities,  in  any  matter  affecting  his  character,  or 
conduct  in  office,  even  thoiigh  his  ministers  may  not 


"  Secrctftry  Sir  M.  Ilicks-Hcarh,  Dcspntohos  to  Govornor  Bowon,  of 
July  'JlJ.aiul  AugiiHt  10,  iSTb,  Com.  Taiters,  1878,  C.  'J17;3,  pp.  bl,  })7. 


. 


IMl'EniAL  CONTROL  OVER  COLONIAL  ADMINISTRATION.    1G3 

concur  in  the  necessity  for  the  same,  in  the  particular 
instance,  cannot  be  questioned.  For  the  authority  of 
a  governor  is  representative  and  derivative,  and  he  pos- 
sesses no  independent  jinisdiction/ 

The  undermentioned  precedents,  which  have  arisen 
in  Canada  since  confederation,  will  serve  to  explain 
and  enforce  this  principle. 

In  18G8,  the  year  after  the  establishment  of  tlic  confoclerate 
government  in  Hritish  North  AnuTJca,  the  provincial  assem- 
bly of  Nova  Scotia  addressed  the  (pieen,  representinuj  that,  so 
far  as  Nova  Scotia  was  concerned,  the  confederation  had  been 
effected  without  the  people  of  the  province  having  been  freely 
consulted  thereupon  ;  that  tiiere  was  reason  to  fear  tliat  the 
results  of  the  Union  would  be  prejudicial  to  some  of  the  spe- 
cial interests  of  Nova  Scotia ;  and  therefore  praying  for  the 
repeal  of  the  imperial  act  under  which  the  union  had  taken 
place.  This  address  was  forwarded  to  her  Majesty  through 
Viscount  Monck,  the  governor-general  of  Canada. 

The  secretary  of  state  for  the  colonies,  in  a  despfitch  dated 
June  4,  18G8,  informed  the  governor-general  that  her  Majes- 
ty's government  believed  the  confederation  act  'Mo  be  not 
merely  conducive  to  the  strength  and  welfare  of  the  provinces, 
but  also  important  to  the  interests  of  the  whole  em[)ire." 
They  could  not  therefore  advise  tlie  reversal  of  this  great 
measure  of  state  policy.  But  they  would  undertake  to  aj»[)eal 
to  the  dominion  government  to  remove  any  just  causes  of  com- 
plaint that  might  be  proved  to  exist  on  the  part  of  Nova 
Scotia,^*  The  dominion  government  promptly  and  honoura- 
bly responded  to  this  appeal,  by  agreeing  to  such  a  modili- 
cation  of  the  original  terms  of  union  as  satisHed  the  claims  of 
Nova  Scotia,  and  removed  the  discontent  prevailing  in  that 
province." 

The  following  case,  which  involved  the  question  of 


Interposi- 
tion ri' 
queried 
I))'  Nova 
Scotia  As- 


'  Seo    the    conTspoiulonce    be-  *  Lords  Papers,  1867-68,    vol. 

twecu    Lord    Xormanlty   (governor  xv.  p.  'JlJ'J. 

(if    \e\v  Zealand)  and    Sir  (Jeorge  "  Canada    Sess.    Papers,   1869, 

drey    (premier  of    the   colony)    t)ii  no.  I);  ibid,  1870,  no.  H. 
this  Hidtjeet.     New  Zealaiul  Papers, 
1878,  A.  1,  pp.  PJ-l>7.  A.  2,  p.  U. 


h 


4 


K^ 


Appoint- 
iiu-nt  of 
adclitioiml 
8ciiators 
ill  Ciinuda 


164       PARLIAMENTARY  GOVERNMENT  IN   THE  COLONIES. 

tlie  interpretation  to  be  put  upon  a  particular  section 
of  the  British  North  America  act,  18G7,  was  appro- 
priately decided  by  the  imperial  government. 

15y  the  twenty-sixth  section  of  the  aforesaid  statute,  the 
queen  is  emjmwered  at  any  time,  on  the  reuonimendation  of 
tha  governor-general,  if  she  tiiinks  fit,  to  direct  that  three  or 
six  members  be  added  to  tlie  Senate  of  Caiuida ;  who  shall 
rein-esent  equally  the  three  divisions  of  tlie  dominion. 

Jn  December,  1873,  on  the  report  of  the  premier,  Mr.  INIae- 
kenzie,  the  Canadian  privy  eounoii  advised  that  an  applica- 
tion shoidd  be  made  to  her  Majesty  to  add  six  ijieinhers  to  the 
Senate,  "  in  the  public  interests."  Though  no  such  reason 
was  alh'ged  at  the  time,  it  was  not  denied  tljat  the  jiroposed 
additit)n  was  desired  simply  for  the  purpose  of  remedyiui;  the 
preponderance  of  the  political  party  adverse  to  the  existing 
administration  in  the  Senate,  by  the  selection  of  six  members 
who  would  support  tlr?  ministry  in  that  chamlter.>  This  recom- 
mendation was  forwarded  to  the  secretary  of  .state,  through 
the  governor-general. 

The  colonial  secretary  (the  earl  of  Kimberley),  in  a  de- 
8i)at(h  dated  Feb.  IH,  1>S74,  stuted  that  after  a  careful  exami- 
nation of  the  question,  he  was  satisfied  that  it  was  intended 
that  the  power  vested  in  her  Majfsty,  under  the  section  afore- 
said, should  be  exorcised  '*  in  order  to  jirovide  a  means  of 
briuLjing  the  Senate  into  accord  with  the  House  of  Commons, 
in  the  event  of  an  actual  collision  of  opinion  between  the  two 
houses."  Aiul  that  "  lier  Majesty  couhl  not  he  advised  to 
take  the  responsibility  of  interfering  with  the  constitution  of 
the  Senate,  except  upon  an  occasion  when  it  had  been  maiU^ 
apparent  that  a  dilVerence  had.  ti:i;^jn  between  the  two  houses 
of  so  serious  and  jieiinanent  a  character  that  the  government 
could  not  be  carried  on  without  her  intervention,  and  when 
it  could  be  shown  that  the  limited  creation  of  senators  allowed 
by  the  act  would  ap]»ly  an  ade(|uate  renu'dy." 

Pursuant  to  an  address  of  the  Canadian  Senate  in  1H77,  this 
correspondence  was  laid  ln'fore  that  house.  And  on  March  ll>, 
live  resolutions  were  agreed  to,  on  division,  reciting  the  facts 


'. 


y  Seo  Mr.   Ueesoi'.s  uuioudincnt,  iu  Canada  Senate  Journals,  1877, 

p.  lao. 


1877, 


IMPERIAL  CONTROL  OVER  COLONLVL  ADMINISTRATION.    165 

of  the  case,  expressing  a  "  high  ai»pic'ciation  of  the  conduct 
of  her  Majesty's  government  in  refusing  to  advise  an  act  for 
which  no  constitutional  reason  couhl  be  ottered,"  and  recording 
the  oj)inion  of  tlie  senate  tiiat  any  addition  to  their  body  under 
the  twenty-sixth  chiuse  of  the  liritish  North  America  act, 
"  which  is  not  absolutely  necessary  l"t)r  the  purjjose  of  bring- 
ing this  iiouse  into  accord  with  the  House  of  Commons,  in 
the  event  of  an  actual  c(»llision  of  a  serious  and  pennanent 
character,  would  be  an  infringement  of  the  constituti(uial  in- 
dependence of  the  senate,  and  lead  to  a  depreciation  of  its 
utility  as  a  constituent  part  of  the  legislature."  These  reso- 
lutions were  directed  to  be  transmitted,  tlirough  the  gover- 
nor-general to  the  secretary  of  state  for  the  colonies,  for  the 
information  of  her  Majesty's  government.^ 

Upon  the  sanu!  principle,  the  secretary  of  state  for  the  cok>  Imperial 
nics  (Earl  of  Kiml>erley)  addressed  a  des[)atch  to  governor  u"!"!',"' 
Fergusson,  of  New  Zealand,  on  Dec.  12,  1S7'3,  remonstrating   \oiu\>i. 
against  certain  observations  made  on  July  20  previous,  in  the 
New  Zealand  House  of  Representatives,  by  the  colonial  trea- 
surer and  chief  minister  (Mr,  Vogel),  in  his  budget  spi-ech. 
Mr.  \^)gel  in  treating  of  colonial  loans,  had  implied  that  the 
impeiial  governnuuit  gave  an  *'  undisclosed  guarantee,"  for  the 
same;  anil  in  reference  to  the  paymejitof  loan  interest  before 
other  charges,   had  observed   that  "  the  governor   being   an 
imperial  oMicer,  the  imperial  govnnnent  would  be;  responsi- 
ble if  their  nominee  did  not  respect  the  priority  which  the 
law  established." 

All  such  responsibility,  as  attaching  to  the  im[)eria1  govern- 
ment, the  col(»nial  secretary  disavowed.  Her  Majesty's  go- 
vernment in  no  way  guarantees  colonial  loans,  "  except  for 
particular  aujounts  si)ecilieil  in  imperial  guarantee  acts,  and 
inasmuch  as  it  exercises  no  interference  or  control  as  to  the 
financial  policy  of  a  colony  under  responsible  government,  it 
shares  none  of  the  responsibility  for  the  due  payment  of  the 
j)rinci|»al  and  interest  of  loans  which  it  has  not  specilically 
guaranU.'e(l." 

Warrants  for  payment  signed  by  the  governor  are  <if  the 
same  character  as  roval  orders  in  this  country,  whi(  h  are 
issued  under  the  royal  sign-manual  :  but  her  Majesty's  signa- 
ture in  no  way  relieves  her  ministers  from  responsibility  in 

■  Sciiato  Journals,  1877,  pp.  130,  134. 


f 


\  I 


!   1 


! 


J 


;ll 


\  ; 


1 
in 


•    I 


•l 


'ii 


i  * 


( ( ImiiMa 
hikI  tht 

I'.ii'ilic 
Railway. 


IGG       PARLLVMENTARY  GOVERNMENT  IN  THE  COLONIES. 

respect  to  the  due  sKlniinistration  of  moneys  voted  by  Pailiu- 
ment.  "  Iler  Miijosly's  governineiit  eiinnot  theiy>oro  iulnut, 
tliat  because  tlie  governor  is  an  inipciial  servant,  t  .  ■  imp' rni' 
poverniueii  would  incur  any  responsibility  with  rLi,-iid  to 
mt^-neys  issued  under  his  order,  beyond  that  wi,v- .li  may  '".? 
imposed  on  them  by  the  legislature  of  this  colon}"  " 

In  187J},  the  government  of  the  province  of  British  Colum- 
bia atldressed  a  formal  remonstrancu  to  the  dominion  govern- 
ment, C()mj)laining  of  the  non-fulfilment  of  the  terms  of  union 
of  that  province  with  Canada,  in  respect  to  the  commence- 
ment of  a  line  of  railway  from  the  I'acilic  coast  to  coiniect 
with  existing  railways  in  eastern  Canada.  The  ri-ply  of  the 
dominion  governmeut  t  >  this  protest  not  being  deemed  satis- 
factory, the  provincial  government  deputed  two  ministers  of 
the  lieutenant-governor's  cabinet  to  proceed  to  England  to 
appi'al  to  her  ^^ljesty^s  governni'-nt  on  the  subject.  IJefore 
the  arrival  of  the  delegates,  the  Kail  of  (^arnatvon,  in  a  de- 
spatch to  the  governor-general  of  Canada,  dated  June  IH, 
187-1,  intimated  his  willingness  to  arhitiatc  between  the  two 
governments,  if  they  would  agree  to  accept  his  decision  upon 
all  matters  in  controversy  between  them. 

This  olVcr  of  her  Majesty's  secretary  of  state  for  tlie  colo- 
nies was  readily  accepted  by  the  dominion  and  provincai 
governments,  and  full  information  ujjon  the  points  in  dispate 
was  communicated  to  Lord  Carnarvon.  Whereupon,  iu  a 
despatch  to  the  governor-general,  dated  Aug.  1(),  1874,  ho 
stated  the  modilications  of  plan  for  the  commeneenient  and 
completion  of  the  great  trans-continental  railway,  which, 
in  the  interest  of  both  parties,  he  would  advise  for  tlieir  ac- 
ceptance. The  Canadi  F<  governiv  .  xpressed  their  willing- 
ness to  accept  these  reeommendati'M  if  moililied  in  certain 
j)artieulars.  After  further  consultation  with  the  delegation 
from  British  Columbia,  the  secretary  of  state,  in  a  despatch 


»  Now    Zfiilaiid    I'jirl.     Papors,     affi'ctcd  tlifir   piivatt^   liylits.     In- 


1873  74,   A. 


IK). 


I'liptTs  ill  ri'l'i'i't'iici'  to  tlic  I'liiiiiis  1)1" 
Messrs.  Hr<ii4;il»'ii,  coiitriictors  for 
tlu>  construction  of  riiihvays  in  New 
Zcalaiiil.  'I'licsc  claims  arose  out  of 
u<iuestioii  raised  hy  Messrs.  Hroj:f- 
'l»Mi  ;<t;ainst  the  coiistiliitiodality  of 
a  slutute  [>■.  'st'd  in  tiio  colony  which 


.">.      See  also     stead  of  raiiiiiji;  tins  tjuestion  in  tlu! 


ci'loniai  courts,  wliich  were  capahlu 
of  affording  rechi'ss,  tlie  claiiiiants 
appealed  to  the  secretary  of  «tale. 
The  colonial  secretary,  however, 
merely  reijuested  the  jjoveriior  to 
liriiii;  the  ease  under  the  notice  of 
ills  ministers.     JhuL  1S7H,  K.-I5. 


t£l 


ll. 


10 


IMPERIAL  Control  over  colonlvl  administration.  1G7 

dated  Nov.  17,  18T4,  fjave  his  final  judgment  upon  the  ques- 
tiv»ii,{iiKl  a  statement  of  ihe  new  terujs  with  l?niisii  Columbia, 
wnicli  he  considered  were  fair  and  reasonable,  in  regard  to 
the  construetion  of  tin)  Pncitio  Raihva} .  J'hesc  lermsv.  ure 
frankly  acceptf;  1  by  the  paities  concerned,  and  tiicy  con- 
tributed for  a  time  to  restore  a  g  d  unckn'standing  between 
the  dominioii  and  provincial  governments.  But  further  de- 
lays ensued,  'i<"  v. hich  the  local  government  of  British  Cohim- 
bia  again  remonstrated,  and  on  Feb.  2,  1870,  the  Legislative 
As,send)ly  unanimously  petitioned  her  Majesty  the  ([ueen, 
praying  that  she  would  cause  the  dominion  government  to  be 
immediately  moved  to  give  effect  to  tlie  terms  of  J..ord  Car- 
narvon's settlement,  above  mentioned.'^ 

A  despatch  from  the  colonial  secretary,  in  reply  to  the  pe- 
tition of  the  British  Columbia  Assend)ly  to  the  (piei'U,  was 
laid  before  the  local  legislature  in  1h77,  together  with  further 
papers  explanatory  of  the  non-fulfilment,  !»y  the  dominion 
government,  of  the  railway  clause  in  the  terms  of  union. 
With  a  view  to  allay  the  continued  dissatisfaction  and  irrita- 
tion which  prevailed  in  the  province  on  this  subject,  the  go- 
vernor-general visited  the  province  in  the  autumn  of  1876, 
and  delivered  an  able  address  on  the  (juestion,  vindicating 
the  government  of  Canada  from  the  imputation  of  bad  faith, 
und  pointing  out  the  enormous  and  hitherto  insuperable  ditli- 
cultics  which  had  occasioned  delay  in  the  conunencement  of 
this  great  national  work.  His  K.\'.ellency's  speech  was  of 
much  service,  in  restoring  public  conlidence,  and  in  reviving 
a  good  understanding  between  the  local  and  the  federal  go- 
venunents.  It  became  necessary,  however,  for  the  liCgisla 
tive  Assembly  of  British  Cohnnbia  to  address  a  iurther  aj)peal 
to  her  Majesty,  in  connection  with  the  railway  ([Ucttion,  in 
the  session  held  in  1878.  But  before  a  rei)ly  could  be  (»btaine«l 
to  this  address  a  change  of  ministry  occurred  in  Canada, 
Tiie  local  government  received  from  the  new  dominion  ad- 
ministration a.ssurances  that  Ijjc  representations  and  claims 
of  the  province  would  receive  their  best  consideration.  Tiie 
local  h'gislaturc  reasseinbled  in  January,  187!>,  wiien  corre- 
sj)omlence  and  telegrams  on  this  momentou-  subject  were  sub- 
mitted  by  the   lieutenant-governor,   wliieh   reanimated   the 


•»  Canada  Sess.  Paix'vs,  1875,  uo.  10;  ilntl.  1876,  no.  11. 


Siipromo 
Hiitliority 
of  the  Iin- 

[)erial  Par- 
lament. 


168       PARLIAMENTARY  GOVERNMENT  IN  TIIE  COLONIES. 

hopes  of  the  province  that  the  national  railway  would  he 
constructed  as  speedily  as  possible.  This  confidence  was 
expressed  by  the  lieutenant-governor  at  the  close  of  tlie  ses- 
sion of  April  20,  1879,  when  he  referred  to  "•  tiie  assurance 
given  by  the  dominion  government  that  railway  work  in  the 
province  would  not  only  be  commenced,  but  be  vigorously 
prosecuted,  this  season." 

Imperial  Dominion  excrcisahle  over  Self-governing    Colonies: 
d.  By  means  of  imperial  legislation. 

In  17G6,  ftt  the  commencement  of  the  unhappy 
disputes  between  Great  Britain  and  her  colonies  in 
North  America,  which  terminated  in  the  uchievement 
of  independence  by  tlie  United  States,  an  act  was 
passed  by  tlie  Imperial  Parliament  which  was  intended 
to  be  declaratory  of  the  legislative  authority  of  Parlia- 
ment over  the  colonies  of  the  British  Crown.  This 
statute  recited  that  '*  whereas  several  of  the  houses  of 
representatives  in  his  Majesty's  colonies  and  planta- 
tions in  America  have  of  late,  against  law,  claimed  to 
themselves,  or  to  the  general  assemldies  of  the  same, 
the  sole  and  exclusive  right  of  imposing  duties  and 
taxes  upon  his  Majesty's  subje(  rs  in  the  said  colonies 
and  plantations,  and  have,  in  pursuance  of  such  claim, 
passed  certJiin  votes,  resolutions,  and  orders, derogatory 
to  the  legislative  authoritv  of  Parliament,  and  inconsis- 
tent  with  the  dependency  of  the  said  colonies  upon  tlie 
Crown  of  Great  Britain;"  —  l)e  it,  therefore,  declared 
that  the  said  colonies  in  America  have  been,  are,  and 
of  right  oug!u.  to  be,  sul;ordinate  unto,  and  dei)eudent 
upon,  the  Imperial  Crown  and  Parliament  of  Great 
Britai)  •,  and  ;bat  the  King's  Majesty,  by  and  with  the 
advicd'  aisd  cun>ent  of  Parliament,  had,  hath,  and  of 
right  oiight  t<;  li;i\  e,  full  ])ower  and  authority  to  make 
laws  and  statutes  of  suflicient  force  and  validity  to  bind 
the  said  colonies,  in  tdl  cases  whatsoever." 


I 


•  (i  Geo.  III.  c.  12. 


t 


CONTROL  BY  MEANS  OF  IMPERIAL  LEGISLATION.       169 


the 

ju'lhI 

mid 

l(Mlt 

roat 

tlio 

1   of 

lako 

bind 


Mr  Pitt,  who  then  led  tlie  opposition  in  Parliament,  de- 
sired cxpres.sly  to  except  fVoni  this  declaratory  act  the 
right  of  taxation  without  the  consent  of  the  colonists; 
but  the  crown  lawyers  would  not  yield  the  i)oint,  and 
the  bill  passed  without  any  alteration.' 

In  fact  Parliament  had  exercised  the  right  of  taxa- 
tion in  the  colonies  for  nearly  one  hundred  years.  The 
first  tax  which  appears  to  have  been  imposed  upon  tlie 
colonies,  by  the  British  Parliament,  was  under  the  Act 
20  Car.  11.  c.  7,  passed  in  l('t72.  This  imposed  an  export 
duty  on  certain  articles  shipped  in  the  colonies  for  con- 
sumption abroad.  It  was  designed  for  the  puri)o.se  of 
protecting  and  reguhiting  commerce.  It  was  followed, 
from  time  to  time,  by  similar  acts  for  the  same  purpose 
imposing  duties  on  importations  into  or  exports  from 
the  colonies  or  plantations  in  America.  In  1703,  an 
act  was  passed  continuing,  permanently,  these  ])rotec- 
tive  duties,  and  directing  that  the  net  produce  thereof 
should  be  reserved  for  the  disposition  of  Parliament  *'  to- 
wards defraying  the  necessary  expenses  of  defending,  pro- 
tecting, and  securing  the  British  colonies  in  America," 
and  in  1767,  another  act  was  passed  (7  Geo.  111.  c.  4  I ), 
to  establish  in  these  colonies,  a  board  for  the  manage- 
ment of  the  customs  duties  imposed  upon  goods  impo.  ted 
into  or  exported  from  those  colonies.  These  protective 
duties  continued  to  be  levied,  under  parliamentary  au- 
thority, and  their  net  produce  to  be  paid  into  the  ex- 
chequer, until  lS4o.  But  bv  the  Act  0  and  10  Vict, 
c.  94,  passed  in  1846,  they  came  to  an  end  ;  the  various 
colonial  legislatures  being  empowered,  by  that  statute, 
to  a(io[)t  measures,  with  the  sanction  of  the  Crown,  for 
the  I'epeal  of  any  impcu'ial  ])rotective  duties  of  customs, 
which  had  been  lierefolbre  imposud  upon  them." 


■^  Sec  May,  Consh  Ilisloiy,  c.  17. 

•   Accounts  ol  I'lililic  Iiicmiih'  uihI  Kxpciiditurft,  from  1088  to  18(i9,  part 
2,  pp.  lUJ-lUo.     (hi  Com.  I'uiHjrH,  1869,  vol.  xxxv.) 


Imperial 
tnxution 

of  till" 

culunic'S. 


I  I 


\  u 


I        I 


Hi 


U 


.'11 


J 


I 


'  ip 


j 


Stamp 
Act. 


170       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

The  colonies  in  North  America  before  their  revolt  were 
in  the  habit  of  taxing  themselves,  by  their  own  laws. 
They  not  only  imposed  internal  taxation,  but  also,  in 
certain  cases,  customs  duties  on  imports.  But  they 
never  disputed  the  right  of  the  Imperial  Parliament 
to  impose  duties  lor  the  regulation  of  commerce.  In 
17G5,  however.  Parliament  passed  the  celebrated  Stamp 
Act,  5  Geo.  Ill,  c.  12,  which  authorized  the  levying,  in 
the  colonies,  of  internal  taxation,  in  aid  of  the  imperial 
revenue.  This  act  excited  the  utmost  indignation  in 
America.  Those  who  did  not  object  to  imperial  customs 
duties,  which  might  be  necessary  for  the  regulation  of 
tnide,  and  were  a  natural  and  equitable  toll  on  mer- 
chandise safely  carried  by  ships  over  seas  protected  by 
Engli^h  lleets,  saw  a  material  difference  in  the  attempt 
to  impose  duties  of  excise.  It  was  the  general  convic- 
tion in  the  colonies  that  a  parliament  in  which  the 
American  people  were  not  duly  represented  had  no 
right  to  impose  internal  taxation.  Upon  these  consi- 
derations being  made  publicly  known,  by  numerous  pe- 
titions, and  especially  by  the  evidence  of  Dr.  Benjamin 
Franklin,  at  the  bar  of  the  House  of  Commons,  on  Ja- 
nuary 28,  1706,  Parliament  hastened  to  repeal  these 
objectionable  imposts.' 

But,  in  the  following  year,  an  equally  objection- 
able Uieasure  was  proposed,  by  the  chancellor  of  the 
exchequer  (Mr.  Charles  Townshend)  and  enacted  by 
Parliament.  The  supporters  of  this  bill,  though  they 
admitted  that  the  right  of  internal  taxation  of 
the  colonies  was  virtually  extinguished,  nevertheless 
aflirmed  the  continued  existence  of  the  right  of  taxing 
commodities  importe*!  into  them  from  other  countries, 
not  merely  for  the  regulation  of  trade,  but  also  for  rais- 


<  I' 


'  Aroniuitsof  Piililin  Tiifomo  anrl     vol.  xxxv.)    Pari.  Hist.  vol.  xvi.  pp. 
Exp<'ii<lituri>,  from  KISS  to  \mi),  p.irt     130-150.     Act  (J  Geo.  111.  c.  11. 
2,  p.  4();J.   (Coiiimoii.s  l'aperH,1869, 


I    ( 


CONTUOL  BY  MEANS  OF  IMPERIAL  LEGISLATION.       171 


mg  a  revenue. 


And  this  act  proceeded  to  appropriate  impost 


f 


the  proceeds  of  certain  duties  of  customs  imposed  under 
its  provisions  to  the  establishment  of  a  permanent  civil 
list  throughout  every  province  in  America,  and  to  settle 
salaries  hitherto  dependent  upon  the  vote  of  the  local 
assembly.**  This  enactment  greatly  increased  the  dis- 
content and  disturbance  already  existing  amongst  the 
American  colonists,  and  they  came  to  a  general  agree- 
ment not  to  import  any  of  the  articles  on  which  the 
new  duties  were  laid.  Kiots  and  disturbances  occurred 
at  Boston  in  December,  1773,  in  the  attempt  to  prevent 
the  landing  of  tea,  subject  to  duty  under  this  obnoxi- 
ous statute.  Thus  began  the  American  Rebellion,  and 
a  war  which  was  prolonged  for  seven  years,  at  a  cost  to 
Great  Britain  of  £115,654,914.  It  was  finally  termi- 
nated by  the  treaty  of  Paris,  on  November  30,  1782, 
which  acknowledged  the  independence  of  the  United 
States  of  America.'' 

During  the  continuance  of  the  war,  and  with  a  vain 
hope  of  arresting  its  progress,  the  Imperial  Parliament 
repealed  the  duty  on  tea  imported  from  Great  Britain 
into  any  colony  in  America,  which  had  been  imposed 
by  the  Act  of  7  Geo.  III.  c.  46  ;  and  at  the  same  time 
renounced  the  claim  of  the  mother  country  to  impose, 
merely  for  the  augmentation  of  the  public  revenue,  any 
imperial  taxation  in  the  colonies.  This  was  done  in 
1778,  by  an  act  which  recited  that,  in  order  to  aid  in 
restoring  peace  in  his  Majesty's  dominions,  it  is  expedi- 
ent to  declare  that  the  King  and  Parliament  of  Great 
Britain  will  not  impose  any  duty,  tax,  or  assessment, 
for  the  purpose  of  raising  a  revenue,  in  any  of  the 
colonies ;  and  will  only  impose  such  duties  as  may  be 
necessary  for   the   regulation   of  commerce,    the   net 


tioii  of 
C-ilKtoilld 

duties. 


8  7  r.eo.  TIT.  c  40. 

h  Pub.  Inc.  &  Kxp.  1083  to  18G9,  part  2,  p.  401. 


i 


li 


Tmporiftl 
tiixiitioii 
for  ri'- 
viimc'pur- 

pOHC'S 

aliaii- 
duiiL-(l. 


Colonial 
powiTH  of 
8«'lf-(;o- 
vermuent. 


172       PAULIAMKNTARY  GOVERNMENT  IN   THE  COLONIES. 

produce  whereof  shall  always  be  applied  to  and  for  the 
use  of  the  colony  wherein  they  shall  be  levied.' 

The  declaratory  statute  of  17GG,  with  the  proviso 
agreed  to  in  1778,  that  it  shall  not  be  construed  to 
sanction  taxation  for  revenue  purposes,  is  still  to  be 
regarded  as  embodying  the  constitutional  assertion  of 
the  supreme  authority  which  is  exercisable  by  the 
Imperial  Parliament  over  all  the  queen's  dominions ; 
notwithstanding  that  they  may  be  in  possession  of  local 
legislatures  with  powers  for  local  self-government.^ 

The  colonial  possessions  of  the  British  Crown,  how- 
soever acquired  and  whatever  may  be  their  political 
constitution,  are  subject  at  all  periods  of  their  exist- 
ence to  the  legislative  control  of  the  Imperial  Parlia- 
ment. Hut  in  practice,  especially  in  the  case  of  colonies 
enjoying  representative  institutions  and  responsible 
government,  the  mother  country,  in  deference  to  the 
principle  of  self-government  has  conceded  the  largest 
possible  measure  of  local  independence,  and  practically 
exerts  its  supreme  authority  only  in  cases  of  necessity, 
or  when  imperial  interests  are  at  stake. 

Once  the  Crown  has  granted  to  a  colony  representa- 
tive institutions,  with  the  power  of  making  laws  for  its 
interior  government,  it  has  been  decided  that  the 
Crown  alone  cannot  tlienceforth  exercise,  with  respect 
to  such  colony,  pecidiar  powers  of  legislation  a])propri- 
ate  to  a  governor  and  council ;  that  prerogativ(^  hav- 
ing been  im])liedly  renounced  by  the  appointment  of  a 
legislative  body  within  the  colony  itself."* 

But  the  supremacy  over  the  colonies  which  apper- 
tains to  the  Imperial  Parliament  is  a  paramount  right, 
and  may  even  be  exercised  so  as  to  override  and  con- 

'  18  Coo.  III.  c.    V2.      Aiul  seo  ponoral),  Hans.   Deb.  vol.  ccxxxiii. 

Clark,  ('<>loiiial  Law,  ]ip.  l.'L  IL  i>.  llol. 

J  Sec    C'lark'H  Colonial   Law,  p.  ^  Campbell  d.  Hall,  Cowper  Rep. 

10.      Forsyth,  Constitiitioiial  Law,  201. 
p.   21.      Sir    J.     llolker  (attorney 


CONTROL  BY  MEANS  OF  TMrERIAL  LEGISLATION.       173 


trol  the  powers  possessed  by  any  local  government. 
The  exercise  of  tliis  authority  is,  however,  reserved  lor 
extreme  occasions  of  public  necessity.  Thus,  in  1838 
and  1839,  Parliament,  by  virtue  of  its  inherent  powers, 
legislated  on  behalf  of  Januiica  and  of  Canada;  by  a 
special  enactment  supplied  certain  defects,  otherwise 
insuperable  in  the  laws  of  Jamaica ;  and  afterwards 
suspended  and  remodelled  the  constitutions  of  both 
these  colonies.' 

Nevertheless,  at  the  very  time  when  necessity  com- 
pelled the  Imperial  Parliament  to  have  recourse  to 
these  extreme  measures,  the  Crown  was  careful  to 
define  the  principles  on  which  the  interposition  of  the 
supreme  authority  of  Parliament  over  British  colonies 
having  representative  institutions  could  alone  be  jus- 
tilied.  In  a  despatch,  addressed  by  the  colonial  mi- 
nister (Lord  Glenelg)  to  Sir  F.  B.  Head,  upon  his 
appointment  as  lieutenant-governor  of  Upper  Canada, 
in  1839,  it  is  stated  that  "  parliamentary  legislation,  on 
any  subject  of  exclusively  intenud  concern,  in  any 
British  colony  possessing  a  representative  assemldy,  is, 
as  a  general  rule,  unconstitutional.  It  is  a  right  the 
exercise  of  which  is  reserved  for  extreme  cases,  in 
which  necessity  at  once  creates  and  justilies  the  excep- 
tion."'" 

The  subsequent  extension,  to  Canada  and  to  Aus- 
tralia, of  the  principle  of  local  self-government,  or.  as 
it  has  been  usually  termed  in  the  colonies,  "  responsible 
government,"  set  the  seal  upon  all  former  concessions, 


Imppriftl 

logiitliition 
ill  colonial 
cuuccriis. 


>  Sen  ISfay,  Const.  Hist.  M  o<l. 
vol.  iii.  )).  ;{<).'):  uiitl  see  tlu!  dehati's 
ii)  the  Imperial  I'arliuineiit  in  lh(i(), 
oil  tlie  liiil  for  (he  better  poveni- 
UKMit  of  tli(>  native  iiiliahitants  of 
New  Zcalaiid.  Hans.  Del),  vol.  clix. 
p.  1;L'<);  vol.  clx.  pp.  41H,  1(510. 

'"  Comnions  Tapriis,  1839,  vol. 
xxxiii.  p.  (».  And  see  Karl  (irey's 
ubhervalioiis,  un  tlie  Uylaiid  case,  in 


llie  Ilonse  of  Lords,  on  June  8, 
LSIO.  Hans.  Deb.  vol.  cv.  p.  1277. 
See  also  extracts  from  despatch  of 
Karl  (Jrey  (Colonial  Sccit'tary)  to 
(lOviM'nor  Fitzroy,  of  New  Sonth 
Wales,  in  1SI7,  iliiii.  vol.  ex.  p.  (J.")7. 
And  Lord  .lohn  Kiisscll's  speech  on 
Colonial  Policy,  on  Keb.  6,  Iti.jO. 
Jhid.  vol.  cviii.  p.  ,'il7. 


M 


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TEST  TARGET  (MT-3) 


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23  WEST  MAIN  STRUT 

WEBSTER,  N.Y.  14380 

(716)  872-4503 


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Powers 
under  co- 
lonial re- 
sponiible 
govern- 
ment. 


Civil  list. 


174       PARLLVMENTARY  GOVERNMENT  IN  THE  COLONIES.. 

and  enlfirged  the  bounds  of  freedom  and  independence, 
in  the  determination  of  all  questions  of  local  concern, 
by  establishing  in  these  colonies  institutions  which 
were  expressly  designed  to  be  "  the  very  image  and 
transcript"  of  those  of  the  parent  state. 

The  first  use  to  which  the  colonial  legislatures  ap- 
plied the  enlarged  powers  conferred  upon  them  by 
the  grant  of  responsible  government  was  to  claim  from 
the  mother  country  the  entire  control  over  provincial 
revenue  and  expenditure.  Heretofore  it  had  been 
customary  for  the  Imperial  Parliament  to  settle  the 
amount  that  should  be  paid  out  of  colonial  revenues 
to  defray  the  cost  of  civil  government  and  of  the 
administration  of  justice,  and  to  make  permanent  pro- 
vision for  the  same  by  imperial  enactment.  It  was 
thus  in  New  South  Wales,  under  the  constitution  estab- 
lished in  1842,  by  the  Act  5  and  6  Vict.  c.  76.  And 
in  other  Australian  colonies,  under  the  Imperial  Act  13 
and  14  Vict.  c.  59,  which  was  passed  in  1850.  In 
Canada,  the  constitutions  framed  in  1791,  and  in  1841, 
by  imperial  legislation,  each  contained  schedules  fix- 
ing the  sums  payable  for  the  services  above  mentioned 
(otherwise  termed  "the  civil  list"),  and  thereby  ap- 
propriating colonial  revenues,  by  imperial  authority, 
without  the  consent  of  the  local  legislature.  It  was 
not  until  1847  that,  by  the  Imperial  Act  10  and  11 
Vict.  c.  71,  the  Canadian  legislature  was  empowered  to 
grant  a  civil  list,  and  to  provide  for  the  remuneration 
of  judges,  and  other  officers  of  the  civil  service,  in  the 
province.  Similar  power  was  conceded  to  the  legisla- 
tures of  New  South  Wales  and  Victoria,  in  1855,  by 
the  Imperial  Acts  18  and  19  Vict.  cc.  54  and  55;  which 
were  passed  pursuant  to  an  agreement,  on  the  part  of 
the  Australian  colonies,  to  accept  an  offer  made  to 
them  by  lier  Majesty's  secretary  of  state  for  the  colo- 
nies, in  1852,  and  to  make  adequate  provision  for  the 


I  i 


NIES. 


ndence, 
joncern, 
1  which 
ige  and 


Lires  ap- 
liem  by 
im  from 
ovincial 
d  been 
ttle  the 
evenues 

of  the 
ent  pro- 
It  was 
n  estab- 
).     And 

Act  13 
i)0.  In 
n  1841, 
les  fix- 
ntioned 
^by  ap- 
thority, 

It  was 
and  11 
^ered  to 
le  rati  on 
in  the 

legisla- 
855,  by 
;  which 

part  of 
iiade  to 
he  colo- 

for  the 


■J 


I 


CONTROL  BY  MEANS  OF  IMPERIAL  LEGISLATION. 


175 


expenses  of  the  civil  government,  in  return  for  the 
surrender  to  them  of  the  revenues  from  public  lands." 

And  here  mention  may  be  made  of  a  curious  question  Approprl- 
which  was  raised  in  the  colony  of  Victoria,  durinof  the  con-  !^^"*V  °^ 

loci  I  ro- 

tinuance  of  the  "  dead-lock  "  between  the  two  houses  of  the  vciiues  in 
lec^islature,  in  1877-1878,  in  regard  to  the  interpretation  /'^'oria 
that  should  be  put  upon  the  forty-fifth  section  of  the  Imperial  rial  sta- 
Act  18  and  19  Vict.  c.  55,  for  amending  the  constitution  of  ^"''^" 
Victoria.  Eminent  counsel,  consulted  by  the  local  govern- 
ment in  1877,  gave  it  as  their  opinion  that  this  section  ex- 
pressly appropriated  so  much  of  the  consolidated  revenue  of 
the  colony  as  might  be  required  to  defray  the  costs,  charges, 
and  expenses  incident  to  the  collection,  management,  and 
receipt  of  the  provincial  revenue  ;  without  the  necessity  for 
any  further  grant  or  appropriation  of  the  same  by  the  parlia- 
ment of  Victoria.  Hitherto  it  had  been  customary,  in  Victo- 
ria, to  disregard  this  section,  and  to  include  all  such  costs, 
charges,  and  expenses,  as  aforesaid,  in  the  annual  votes  in 
supply,  and  in  the  subsequent  appropriation  act  passed  by 
the  local  parliament.  Counsel  contended,  however,  that  the 
imperial  act  gave  ample  authority  for  all  such  appropriation 
and  expenditure.  This  interpretation  was  accepted  by  the 
Victoria  Assembly,  and  the  local  government  decided  to  give 
effect  to  it,  albeit  the  Legislative  Council  protested  against 
the  proceeding.  The  governor  (Sir.  G.  Bowen)  requested 
the  secretary  of  state  to  obtain  the  o[)inion  of  the  law  offi- 
cers of  the  Crown  in  England  upon  the  point.  These  offi- 
cers confirmed  the  interpretation  put  upon  the  act  by  the 
colonial  lawyers;  with  a  proviso,  that  such  expenditure,  if 
incurred  under  the  provisions  of  the  fort3^-fiftli  section  of  the 
act,  must  be  strictly  limited  to  the  purposes  therein  stated. 
If  diverted  to  any  other  purpose,  the  previous  sanction  of  an 
act  of  the  Victoria  parliament  would  be  required.  Fortunately, 
the  tenq)orary  settlement  of  the  difficulties  between  the  two 
houses  in  Victoria  rendered  it  unnecessary,  at  this  time,  to 
have  recourse  to  this  strained  interpretation  of  the  imperial 


"  AfMerley,     Colonial      Polioy,     July   17,    1835;  Commons   Papers, 
pp.31,  1(L>.    And  see  Lord  Glenolg's    1836,  vol.  xxxix.  p.  5. 
despatch  to  the  Earl  of  Gosford,  of 


i: 


11 


\ 

'  i 

I ; 


>   -i 


1 


a' 


Colonial 
trade  and 
tariils. 


176       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

act,  to  obtain  the  issue  of  public  moneys  for  the  purposes 
therein  specified." 

The  freedom  granted  to  the  principal  British  colonies, 
by  the  establishment  therein  of  local  self-government, 
began  speedily  to  lead  to  the  demand  for  complete 
emancipation  from  imperial  control,  in  all  matters  of 
local  concern,  including  the  regulation  of  their  trade 
and  commerce.  Heretofore,  the  imposition  of  customs 
dutie<s,  and  the  regulation  of  trade  between  the  colonies 
and  the  mother  country,  or  with  foreign  countries,  as 
well  as  all  intercolonial  commerce,  had  been  regarded 
as  within  the  undoubted  competency,  if  not  within  the 
exclusive  jurisdiction,  of  the  Imperial  Parliament. 

In  Canada,  so  recently  as  on  Sept.  8,  1842,  the  go- 
vernor-general, in  his  speech  from  the  throne,  at  the 
opening  of  the  legislature,  announced  that  the  Imperial 
Parliament  had  framed  a  tariff  for  the  British  Possessions 
in  North  America  which,  it  was  anticipated,  would  pro- 
mote essentially  their  financial  and  commercial  interests. 
But  this  was  the  last  instance  of  imperial  interference 
in  a  matter  so  vitally  affecting  the  welfare  and  internal 
development  of  the  Canadian  people. 

Consequent  upon  the  incorporation  into  the  commer- 
cial system  of  the  mother  country  of  free-trade,  —  a 
principle  which  the  colonies,  generally,  were  reluctant 
to  accept,  and  slow  to  approve,  —  an  additional  boon 
was  conceded  to  the  self-governing  colonies,  in  the 
shape  of  enlarged  freedom  from  imperial  control  in  the 
determination  of  all  fiscal  and  commercial  questions. 

Every  British  colony  possessing  legislative  institu- 
tions had  from  the  first  been  more  or  less  free  to  tax 
itself,  and  to  impose,  with  the  consent  of  the  Crown, 
duties  of  customs  upon  importations  into  or  exporta- 


o  Victoria  Lee:.  Coun.  Journals,    mons  Papers,  1878,  C.  2173,  pp. 
1877-78,  pp.  1!);J,  211,  appx.  A.  5;     32-45,  97.     And  aae post,  p.  501. 
ibid.  1878    (in   loco).      And  Com- 


NIES. 
purposes 

jolonies, 
rnment, 
omplete 
tters  of 
ir  trade 
customs 
colonies 
tries,  as 
egarded 
ill  ill  the 
It. 

the  go- 
),  at  the 
mperial 
isessions 
uld  pro- 
pte rests, 
ference 
internal 

ommer- 

de,  —  a 

iliictant 

nI  boon 

in   the 

1  in  the 

ions. 

institu- 

j  to  tax 

Crown, 

xporta- 

2173,  pp. 
p.  501. 


H 


CONTROL  BY  MEANS  OF  IMPElilAL  LEGISLATION.       177 

tions  from  its  own  territory.  5ut,  concurrently  with 
this  privilege,  the  Imperial  Parliament,  as  we  have  seen, 
retained  the  right  to  regulate  colonial  trade,  and  to 
subject  the  same  to  certain  imposts,  at  its  discretion, 
with  a  view  to  the  general  regulation  and  control  of 
the  commercial  policy  of  the  empire.^' 

In  1842,  however,  the  imperial  government  under- 
took to  obtain  from  the  Imperial  Parliament  certain 
advantages  for  Canada,  in  the  introduction  into  the 
United  Kingdom  of  Canadian  wheat  and  Hour  at  a  re- 
duced rate  of  duty;  provided  that  the  Canadian  legis- 
lature would  meet  the  views  of  her  Majesty's  govern- 
ment by  the  imposition  of  a  higher  duty  upon  American 
wheat  imported  into  Canada.  This  condition  was  faith- 
fully observed  on  both  sides,  by  means  of  legislation 
in  Canada  and  in  the  United  Kingdom  in  the  following 
year."^  The  imperial  statute  of  1843  w^as  memorable, 
not  only  because  it  granted  to  Canada  a  long-desired 
boon,  in  permitting  her  produce  to  enter  the  markets 
of  the  mother  country  upon  exceptionally  advantageous 
terms,  but  for  the  more  important  reason,  that  it  elicited 
from  leading  statesmen  in  the  Imperial  Parliament  an 
admission  of  the  principle  that  Canada  ought  to  possess 
the  exclusive  right  (and  prospectively  all  other  British 
colonies  in  the  enjoyment  of  "responsible  government"), 
to  frame  her  own  tariffs,  and  to  regulate  her  own  trade 
and  commerce  at  her  discretion.*" 

In  1846,  another  imperial  statute  was  passed,  which 
empowered  the  British  colonies  in  America,  and  the 
colony  of  Mauritius,  to  reduce  or  repeal,  by  their  ow^n 


P  See  an^e,  p.  109.    And  see  Earl  act  was  reserved,  and  assented  to. 

Grey's  paper  on  the  Colonie:>,  in  the  after  the   passing  of   the   imperial 

Nineteenth  Century  for  June,  1879;  act;  see  Canada  Leg.  Assem.  Jour- 

and  Lord  Norton's  reply  thereto,  in  uals,  1843,  p.  16. 

the  July  number.  '  See  Hans.  Deb.  vol.  Ixix.  pp. 

0  See  Imp.  Act  6  and  7  Vict.  c.  713-747. 
29.   Canada  Act  0  Vict.  c.  31.   Tliis 

la 


11 


1 1' 

r 


'!■ 


li  \ 


Trade  and 
taritl's  free 
from  im- 
perial con- 
trol. 


178       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

legislation,  duties  imposed  by  imperial  acts  upon  fo- 
reign goods  imported  into  the  said  colonies  from  foreign 
countries.^ 

And  in  the  revised  edition  of  the  "  Rules  and  Regula- 
tions for  her  Majesty's  Colonial  Service,"  issued  in  1850, 
the  principle  above  mentioned  was  distinctly  enunciated 
in  the  following  terms :  "  The  customs  establishments 
in  all  the  colonies  are  under  the  control  and  manage- 
ment of  the  several  colonial  governments,  and  the 
colonial  legislatures  are  empowered  to  estabHsh  their 
own  customs  regulations  and  rates  of  duty." ' 

An  additional  benefit  was  granted  to  the  colonies  by 
the  repeal,  in  1849,  by  the  Act  12  and  13  Vict.  c.  29, 
of  the  old  navigation  laws,  which  had  continued  in 
operation  for  about  two  hundred  years.  By  these  laws, 
and  the  system  of  legislation  to  which  they  belonged, 
the  monopoly  of  a  large  part  of  the  import  trade  of  the 
United  Kingdom  had  been  secured  for  British-built 
ships ;  and  nearly  all  the  trade,  both  import  and  ex- 
port, between  the  mother  country  and  the  colonies, 
and  the  entire  intercolonial  trade,  was  limited  to  ships 
of  British  tonnnge."  Certain  privileges  were  granted 
to  colonial  ships,  so  that  they  might  share  in  the  pro- 
tection thus  retained  against  foreign  shipping.  Never- 
theless, to  Canada  this  protection  was  of  small  account 
compared  to  the  injury  she  sustained  by  being  deprived 
of  the  opportunity  of  securing  for  her  vast  system  of 
inland  navigation  the  great  and  growing  carrjdng-trade 
of  North-western  America.  Accordingly,  in  1848,  nu- 
merous petitions  were  sent  from  Canada  for  the  repeal 


■'  Imp.  Act  9  and  10  Vict.  c.  94. 
Canada  was  not  .slow  to  avail  hor- 
.«!clf  of  this  liberty,  inasmuch  as  the 
introduction  of  free-trade  into  (ireat 
Britain  deprived  her  of  the  jnivi- 
loijes  conferred  upon  her  in  184;}, 
and  necessitated  defensive  mea- 
sures for  the  protection  of  Canadian 


commerce.  See  Adderley's  Colo- 
nial Policy,  p.  28. 

t  Sec.  399. 

„  For  a  brief  account  of  the  his- 
tory and  prestMit  operation  of  the 
imperial  navigation  laws,  sec;  Ste- 
phon's  Commentaries  on  the  Liiws 
of  England,  7th  ed.  (1871),  vol.  iii. 

p.  I4;i. 


I 


lES. 

pon  fo- 
foreign 

^egula- 
n  1856, 
nciated 
hments 
lan.oge- 
nd  the 
li  their 


nies  by 

:.  c.  29, 

ued  in 

ic  laws, 

longed, 

J  of  the 

Bh-built 

md  ex- 

jlonies, 

o  ships 

anted 

le  pro- 

Never- 

ccoimt 

prived 

tern  of 

trade 

US,  nu- 

repeal 


n 


r 


's  Colo- 


the  his- 
1  of  the 
SCO  Ste- 
le Laws 

vol.  iii. 


CONTROL  BY  MP!ANS  OF  IMPERIAL  LEGISLATION.       179 

of  the  navigation  laws,  so  far  as  they  applied  to  Canada,  Navipa- 
and  that  the  river  St.  Lawrence  might  be  opened  to 
the  use  of  vessels  of  all  nations/  These  petitions  were 
responded  to  by  the  entire  repeal,  in  1849,  of  the  re- 
strictions imposed  upon  foreign  shipping  in  British  and 
colonial  trade,  save  only  as  respected  the  coasting  trade 
of  Great  Britain  and  her  dependencies,  which  was  after- 
wards dealt  with  by  separate  legislation. 

The  powers  of  the  Canadian  legislature  and  of  other 
self-governing  colonies  received  a  further  extension 
by  the  imperial  customs  act  of  1857,  and  by  the  act  of 
1869,  amending  the  law  concerning  the  coasting  trade 
and  colonial  merchant  shipping.  These  statutes  con- 
ferred upon  the  colonies  the  right  of  making  entire  provi- 
sion for  the  management  and  regulation  of  their  customs, 
trade,  and  navigation ;  subject  only  to  certain  limita- 
tions, to  be  hereafter  mentioned,  in  regard  to  differen- 
tial duties  and  to  the  observance  of  treaty  obliga- 
tions.''' 

From  these  precedents,  it  will  be  seen  that  the  au- 
thority of  the  Imperial  Parliament  is  no  longer  used 
for  the  purpose  of  maintaining  a  uniform  commercial 
policy  throughout  the  empire.  Self-governing  colonies 
are  now  free  to  regulate  their  own  commercial  policy 
as  they  think  fit ;  but  with  the  proviso,  —  which  is 
either  expressed  or  understood,  as  the  case  may  be,  — 
that  they  may  not  use  their  liberty  to  the  direct  injury 
of  British  commerce,  or  so  as  to  infringe  upon  obliga- 
tions incurred  by  the  mother  country  in  her  treaties  with 
other  nations.  To  this  extent,  restraints  upon  colonial 
commercial  legislation  continue  to  be  maintained,  save 
only  as  respects  the  dominion  of  Canada. 

By  special   instructions   to  colonial  governors  (but 


"  Canada  Leg.  Assembly  Jour-    sec.     15;    since    repealed,    but  re- 
u.ils,  1849,  appx.  C.  enacted  bv  the  30  and  lU  Vic.   c. 

«•  Imp.  Act  20  and  21  Vic.  c.  02,    36,  sees.   149-151. 


•X     1 


M 


Im 

1 

i^^l 

1' 

ii  ;,: 


Differen- 
tial duties. 


Bounties. 


Reserved 

imperial 

rights. 


180       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

which  are  no  longer  issued  in  relation  to  Canada),  the 
legislatures  are  forbidden  to  impose  differential  duties, 
—  so  as  to  bestow  exceptional  advant.ages  upon  foreign 
over  British  trade,  —  or  to  the  detriment  of  countries 
with  which  Great  Britain  has  entered  into  commercial 
treaties.  They  are  also  forbidden  to  alter  duties  im- 
posed by  the  Imperial  Parliament  on  British  goods, 
or  to  interfere  in  any  way  with  the  treaty  obligations 
of  the  empire/' 

Colonial  legislatures  were  formerly  prohibited  from 
granting  bounties  or  exemptions  fjom  duty,  for  the 
purpose  of  affording  special  encouragement  to  particu- 
lar branches  of  commerce  or  industry/  But  this  pro- 
hibition is  no  longer  enforced/ 

The  imperial  government,  however,  has  not  relin- 
quished the  right  to  make  general  regulations  con- 
cerning trade  and  navigation  with  the  British  colonies, 
and  to  enforce  the  same  by  the  authority  of  orders  in 
council,  in  cases  wherein  exclusive  powers  to  legislate 
upon  such  matters  have  not  been  directly  conceded  to 
colonial  legislatures.''      And  it  is  always  in  the  discre- 


'  See  despatches  from  the  colo- 
nial secretary  respecting  diiferential 
duties,  in  1843  and  1846.  Commons 
Papers,  1846,  vol.  xxvii.  pp.  27-55. 
The  Australian  Constitutions  Act, 
18.50  (13  and  14  Vict.  c.  59,  sec.  27) 
forbids  the  imposition  of  such  du- 
ties, by  Australian  legislatures;  and 
these  colonies,  as  also  New  Zealand, 
are  prohibited  from  any  fiscal  or 
financial  legislation  in  opposition 
to  any  existing  treaty  between  Great 
Britain  and  any  foreign  power.  And 
see  Lord  Kimberley's  despatches  of 
July  13,  1871,  and  April  10,  1872. 
(Post,  p.  196,  and  South  Australia 
Pari.  Proc.  1872,  vol.  iii.  no. 
104.) 

y  Grey,  Col.  Policy,  vol.  i.  pp. 
279-286.  Adderley,  Col.  Pol.  p.  58. 
Commons  J'apers,  1864,  vol.  xl. 
p.  097. 


^  See  Lord  Norton's  Paper,  in 
Nineteenth  Centur  /,  for  July,  1879, 
p.  172. 

»  See  Colonial  F  lies  and  Regula- 
tions, 1879,  c.  12.  See  also  the 
Imperial  Navigation  Act,  10  and  17 
Vict.  c.  107,  sees.  181,  185,  and  187, 
regulating  certain  process  in  regard 
to  shipping  in  colonial  ports,  where 
the  same  has  not  been  provided 
for  by  any  colonial  enactment.  And 
the  colonial  secretary's  cii'cular  de- 
spatch of  Jan.  21, 1878,  transmitting 
copies  of  imperial  orders  in  coun- 
cil, to  give  effect  to  the  Act  15  Vict, 
c.  26,  for  the  apprehension  of  de- 
serters from  foreign  merchant  ves- 
sels in  any  part  of  the  empire,  — 
whenever  foreign  powers  shall  af- 
ford similar  facilities  for  tht;  reco- 
very of  British  seamen  deserting 
within   their  territories.      "  These 


^>^ 


CONTROL  BY  MEANS  OF  IMPERIAL  LEGISLATION.      181 


Excep- 
tional 


tion  of  the  secretary  of  state  for  the  colonies  to  make 
known  the  views  of  her  Majesty's  ministers  upon  ques- 
tions of  trade  and  commerce  to  the  governors  of  colo- 
nies, for  the  information  and  guidance  of  the  local 
legislatures.^ 

But  on  account  of  the  growing  importance  of  Cana- 
da, as  well  before  as  since  confederation,  exceptional  pnviiotres 
privileges  have  been  conceded  to  her,  from  time  to  ca'nadL  ' 
time,  in  respect  to  fiscal  and  commercial  matters 
wherein  the  interests  of  Canada  were  concerned,  with 
freedom  to  adopt  whatever  policy  might  be  approved 
by  the  local  legislature,  irrespective  of  the  opinions  or 
policy  of  the  Imperial  Parliament. 

In  1859,  upon  the  enactment  of  a  new  Canadian 
tariff,  certain  manufacturers  of  Sheffield  moved  the 
colonial  secretary  (the  Duke  of  Newcastle)  to  protest 
against  it.  Whereupon  his  Grace  wrote  a  despatch  to 
the  governor-general,  dated  Aug.  13,  1859,  upon  the 
subject.  In  reply,  Mr.  (now  Sir  Alexander)  Gait,  the 
Canadian  finance  minister,  wrote  a  memorandum,  which 
was  transmitted  to  the  colonial  office  by  the  governor- 
general,  wherein  he  asserted  it  to  be  his  duty  "  dis- 
tinctly to  affirm  the  right  of  the  Canadian  legislature 
to  adjust  the  taxation  of  the  people  in  the  way  they 
deem  best,  even  if  it  should  unfortunately  happen  to 
meet  the  disapproval  of  the  imperial  ministry.  Her 
Majesty  cannot  be  advised  to  disallow  such  acts,  unless 
her  advisers  are  prepared  to  assume  the  administration 
of  the  affairs  of  the  colony,  irrespective  of  the  views 
of  its  inhabitants."  This  position,  he  added,  "  must  be 
maintained  by  every  Canadian  administration." " 


orc^ers  affect  the  whole  of  her  Ma- 
jesty's dominions."  New  Zealand 
i'arl.  Papers,  1878,  appx.  A.  1, 
p.  12;  A.  2,  pp.  1-3, 11.  For  a  list 
of  the  foreign  countries  with  which 
this  arrangement  has  been  made,  see 
Col.  Rules  &  Reg.  1879,  sec.  415. 


''  Hans.  Deb.  vol.  Ixxxviii.  pp. 
G7S,  908.  Earl  Grey's  Despatches 
to  the  governor  of  Canada  in  1816 
and  1818;  Canada  Leg.  Assem.  Jour- 
nals, 1847,  appx.  K.;  ibid.  1849, 
appx.  N. 

<=  Mr    Gait's  Memorandum,  Ca- 


1    ' 


182      I'AHLIAMKNTAUY  GOVEHNMKXT   IN  THE  COLONIES. 


I  h> 


i: 


Doniiiiion 
coinmer- 
rial  Ic'gis- 
lutiuti. 


The  imporijil  government  did  not  attempt  to  ques- 
tion the  soundness  of  this  position  ;  and  tliey  have  ever 
since  evincJHl  a  disposition  to  acquiesce  in  the  exercise, 
by  the  Canadian  parUament,  of  the  utmost  freedom  in 
the  determination  of  their  commercial  policy,  without 
regard  to  its  application  to  or  agreement  with  the  ideas 
embodied  in  the  legishition  of  the  mother  country,  or 
ndvocated  by  the  ministers  of  the  Crown  in  Great 
Britain. 

In  the  British  North  America  act  of  1867,  "the 
exclusive  legislative  authority  of  the  parliament  of 
Cnn.'ida "  was  recognized,  as  extending  to  "  all  mat- 
ters" included  in  '"the  regulation  of  trade  and  com- 
merce," "  the  raising  of  money  by  any  mode  or  system 
of  taxation,"  "  navigation  and  shipping,"  "  currency  and 
coinaire.'"'  And.  although  for  a  time  the  restriction 
upon  the  imposition  of  differential  duties  continued  to 
be  enforced,  at  least  to  the  extent  of  requiring  the 
governor-general  to  reserve  any  bills  of  this  nature  for 
the  special  consideration  of  her  Majesty's  government, 
yet  upon  the  issue  of  revised  instructions  to  the  Mar- 
quis of  Lome,  upon  his  assumption  of  the  government 
of  Canada,  in  October,  1878,  these  directions  were 
omitted,  and  the  imperial  government  were  content  to 
rely  upon  the  prerogative  right  of  disallowance,  as  a 
sufficient  security  against  the  enactment  of  any  mea- 
sures, by  the  parliament  of  Canada,  that  should  be  of 
such  a  character  as  to  call  for  the  interposition  of  the 
royal  veto."     Respect  for  the  rights  of  local  self-govern- 


iiada  Sess  Papers,  1860,  no.  38. 
Aiui  in  Coniinous  Papers,  1864, 
vol.  xli.  ji.  7!). 

•1  'See  Uie  B.  X.  A.  Act,  1807,  sec. 
91.  The  extent  to  which  the  pow- 
ers conferred  by  this  statute  were 
innnodiately  acted  upon  will  be 
a))i)arent  on  referring  to  the  first 
customs'  act  passed  by  the  do- 
minion parliament,  31   Vict.  c.   7. 


And  see  the  Report  of  the  Imperial 
Board  of  Trade  thereon.  Canada 
JSess.  Papers,  1869,  no.  47,  p.  13. 

«  See  ante,  p.  80.  In  the  co- 
lony of  Xew  Zealand,  likewise,  the 
prohibition  against  the  imposition 
of  differential  duties  has  been  so  far 
relaxed  as  to  permit  of  bills  for  this 
purpose  being  passed  by  the  colonial 
legislature,  provided  only  that  they 


CONTROL  BY   MEANS  OF   IMI'KRIAL  LEGISLATION.        183 


ment,  previously  conceded  to  the  Canadian  provinces, 
—  and  which  were  ratified  and  enlarged  by  the  opera- 
t.^n  of  the  act  estaljli.shing  the  dominion  of  Canada, — 
has  prevented  the  imperial  government  from  interpos- 
ing any  other  hinderance  to  the  adoption,  by  the  Cana- 
dian parliament,  of  whatever  description  of  commercial 
legislation  might  be  generally  acceptable  to  the  inhabit- 
ants of  the  dominion. 

In  the  session  of  the  Canadian  parliament  held  in  ^" 
1879,  a  tariff  was  enacted  which  was  professedly  based  tar 
upon  the  principle  of  protection  to  native  industries. 
Although  this  policy  was  directly  opposed  to  the  sys- 
tem of  free-trade,  approved  and  enforced  by  the  mother 
country,  the  secretary  of  state  for  the  colonies,  on 
being  invited  by  a  prominent  member  of  the  House  of 
Commons,  on  March  20,  1879,  to  discountenance  and 
disallow  the  ''  Canadian  national  policy,"  declined  to 
interfere,  alleging  that  this  measure  was  not  in  excess 
of  the  rights  of  legislation  guaranteed  by  the  British 
North  America  act,  under  which  (subject  only  to  treaty 
obligations)  the  fiscal  policy  of  Canada  rested  with  the 
dominion  parliament,  and  that,  however  much  her  Ma- 
jesty's government  mi  ht  regret  the  adoption  of  a 
protective  system,  they  ''  not  feel  justified  in  oppos- 
ing the  wishes  of  the  C    ..    ian  people  in  this  matter.^ 

Furthermore,  in  view  ol    the  peculiar   position    in 
which  Canada  stands  in  relation  to  the  United  States 


na 

ill. 


.liiin ' 
ctive 


JVi; 


' 


(together  with  any  bills  that  might 
prejudice  the  trade  and  shipping 
of  the  United  Kingdom  and  its  de- 
pendencies) are  reserved  by  the  go- 
vernor for  the  consideration  and 
approval  of  the  Crown.  Memoran- 
dum by  Mr.  (now  Sir)  Julius  Vogel, 
colonial  treasurer  of  New  Zealand, 
dated  Dec.  8,  1871.  South  Aus- 
tralia Pari.  Proceed.  1872,  vol.  iii. 
uo.  104,  p.  10. 

*Hans.  Deb.  vol.  ccxliv.  p.  1311. 


For  a  copy  of  the  despatch  from 
the  governor-general  of  Canada,  re- 
.specting  the  new  customs  tariif,  see 
Commons  Papers,  1879,  C.  2305. 
Further  particulars  as  to  the  growth 
of  colonial  independence,  in  ques- 
tions of  commercial  policy,  will  be 
found  in  the  next  section,  which 
deals  with  the  treaty-making  power, 
and  the  rights  conceded  to  the  colo- 
nies in  connection  with  the  negotia- 
tion and  enforcement  of  treaties. 


I     *ii 


I  • 


184     PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


\i]\ 


Recipro- 
city be- 
tween 
Canada 
and  tile 
United 
States. 


Colonial 

ajjents-ge- 

neral. 


of  America,  and  to  the  circumstances  of  political  exi- 
gency, and  other  considerations  of  importance,  which 
tend  to  favour  the  removal  of  all  restrictions  to  the 
establishment  of  reciprocal  trade  between  the  two 
countries,  her  Majesty's  government  have  approved, 
from  time  to  time,  of  proposals  to  effect  the  same  by 
means  of  reciprocjxl  and  concurrent  legislation  by  Ca- 
nada and  the  United  States;  a  method  of  procedure 
which  has  been  regarded,  by  American  statesmen,  as 
preferable  to  that  of  stipulations  by  treaty.  All  such 
legislation,  however,  must  needs  be  carefully  reviewed 
by  the  imperial  government,  in  order  to  secure  that  it 
should  involve  no  substantial  infringement  of  treaty 
obligations  towards  other  nations,  and  no  appreciable 
injury  to  the  interests  of  Great  Britain.^ 

And  here  it  may  be  convenient  to  make  mention 
of  an  office,  of  comparatively  recent  origin,  which  is 
gradually  acquiring  considerable  weight  and  influence 
in  the  oversight  of  the  commercial  interests  of  the 
principal  British  colonies,  and  in  matters  affecting  emi- 
gration, and  trade  between  the  colonies  and  the  mother 
country  and  foreign  nations.  I  refer  to  the  agents- 
general,  who  are  deputed  by  different  colonies  in  Aus- 
tralia, and  by  the  Canadian  dominion,  to  reside  in 
London,  expressly  to  watch  over  the  interests  of  their 


B  See  the  correspondence  between 
the  Imperial  and  Canadian  govern- 
ments on  tliis  .subject,  in  Canada 
Sess.  Papers,  1869,  no.  47.  For 
examples  of  such  reciprocal  legisla- 
tion, see  the  Canada  order  in  coun- 
cil, issued  in  1870,  to  impose  ton- 
nage dues  on  United  States  vessels 
frequenting  Canadian  ports,  to  the 
same  extent  as  the  duties  to  be  ex- 
acted from  Canadian  vessels  fre- 
quenting United  States  ports  (Ca- 
nada Orders  in  Council,  p.  176). 
And  see  an  c'lct  passed  by  the  United 
States  Congress,  in  1877-78,  c.  324, 


authorizing  Canadian  vessels  to  aid 
Canadian  or  other  vessels  wrecked 
or  disabled  in  American  waters  con- 
terminous to  Canada,  which  act  is 
not  to  take  effect  until  the  issue  of 
a  proclamation  by  the  president  of 
the  United  States  declaring  that  a 
similar  privilege  has  been  extended 
to  American  vessels  by  the  govern- 
ment of  Canada.  Up  to  April  1, 
1879,  no  such  proclamation  had  been 
issued,  as  the  Canadian  government 
had  not  granted  the  reciprocal  privi- 
lege. See  Report  Marine  and  Fisher- 
ies Department,  for  1878-79,  p.  Ixx. 


CONTROL  BY  MEANS  OF  IMPERIAL  LEGISLATION.       185 

respective  colonies,  to  superintend  local  emigration 
agencies,  and  generally  to  transact  business  on  behalf 
of  their  respective  colonies  with  the  imperial  govern- 
ment. 

This  office  is  now  conferred,  as  a  rule,  upon  men  of 
experience,  who  have  filled  the  highest  positions  in  the 
colony,  and  who  are  regarded  by  all  parties  as  possess- 
ing special  authority  and  qualifications. 

It  has  not  been  unusual  fpr  agents-general  to  be 
chosen  from  the  imperial  House  of  Commons,  or  else  to 
be  in  a  position  to  obtain  seats  in  that  powerful  assembly. 
Thus  an  indirect  representation  of  the  colony  in  the 
British  Parliament  is  secured,  through  individuals  who 
are  not  mere  political  nominees,  but  who  possess  the 
confidence  of  all  parties ;  and  who,  from  their  famili- 
arity with  the  condition  and  resources  of  their  colony, 
are  admirably  fitted  to  be  spokesmen  of  colonial  in- 
terests in  the  national  council.'* 

With  a  view  to  the  increased  responsibility  and  consi-  Resident 
deration  which  is  now  attributed  to  agents-general,  it  has  for  Cana- 
been  proposed  to  confer  upon  them  a  more  distinctive  fanli!  ^"^ 
and  appropriate  designation.      In  fact  the   dominion 
government,   in   appointing   in   November,   1879,   Sir 
Alexander  Gait  to  represent  the  interests  of  Canada 
in  England,  has  already  given    him  a  more  defined 
position  and  larger  powers  by  nominating  him,  w^ith 
the  consent  of  tlie  imperial  government,  as  resident 
minister  for  the  dominion  of  Canada. 

The  expediency  of  this  change  of  title,  and  its  antici- 
pated advantages,  are  well  described  in  the  following 
extract  from  a  letter,  written  by  Sir  Julius  Vogel, 
agent-general  for  the  colony,  to  the  secretary  of  New 
Zealand,  dated  Feb.  12,  1879:'  — 

"In  making  the  recommendation  to  appoint  Mr.  Kenna- 


u  See  Hans.  Deb.  vol.  ccxlv.  pp.  1122,  1178. 

«  New  Zealand  Pari.  Papers,  Sess.  II.  1879,  D.  3. 


i 


n  ) 


i 


•J 


186       PARLIAMENTAUY  GOVERNMENT  IN  THE  COLONIES. 


Change  of  way  assistant  agent-general,  I  am  assuming,  of  course,  that 
a 'h'ii1s-<'-o-  ^^^^  ^^^^^  ^^  agent-general  is  to  be  continued.  There  is,  how- 
luTiii  into    ever,  I  think,  much  to  be  said  in  favour  of  alterinff  this  title, 

■'If  O  ' 

uUnisters.  '^"^^  ^^^^  status  of  the  agent-general.  The  designation  is,  I 
believe,  borrowed  from  that  wliich  was  formerly  borne  by  the 
representative  of  the  New  England  States  before  the  declara- 
tion of  Amei'ican  independence.  But  it  does  not  do  justice 
to  the  many  responsibilities  and  the  true  position  of  the  officer 
in  question.  It  is  open  also  to  much  misconstruction,  of 
which,,  indeed,  there  is  a  ludicrous  instance  on  record.  The 
agent-general  of  Victoria  some  years  ago  ordered  the  words 
'  agejit-general '  to  be  '  \seribed  on  some  blinds,  in  gold  let- 
ters. iNluch  to  his  consternation,  he  found  that  the  artist 
considered  "general  agent"  the  more  correct  phrase.  It 
seems  to  me  that  the  functions  of  agents-general  are  emi- 
nently representative,  and  that  they  should  be  called  resident 
ministers  in  England  for  their  respective  colonies.  At  the 
same  time,  I  think  they  should  have  a  defined  position 
amongst  the  queen's  servants,  which  at  present  they  have  not. 
They  are,  in  fact,  without  any  rank  at  all.  I  think,  too,  that 
many  things  which  now  pass  through  the  governors  of  colo- 
nies, with  some  risk  of  disturbing  the  harmonious  relations 
between  the  colonies  and  tlie  mother  country,  might  be  dealt 
with  bv  tlio  resident  minister,  under  direct  instructions  from 
the  governor  in  council ;  and  so  the  suspicion  of  personal 
government  be  avoided.  You  will,  I  hope,  acquit  me  of  any 
personal  object  in  making  this  recommendation.  As  an  ex- 
premier  of  New  Zealand,  the  change  would  not  improve  m}'- 
position  ;  for  the  colony  has  no  greater  honour  to  bestow  than 
that  which  is  enjoyed  by  one  who  is  fortunate  enough  to  liave 
held  that  higli  i)osition.  The  rank  of  resident  minister  should, 
I  thi)dv,  be  the  same  as  that  of  an  ordinarv  minister.  I  do 
not  think  he  should  necessarily  retire  with  a  government  any 
more  than  ambassadors  are  in  the  habit  of  so  doing.  An 
agent-general's  position  should,  in  my  opinion,  be  analogous 
to  that  of  an  ambassador,  making  allowance  for  the  fact  that 
he  is  representing  a  portion  of  the  same  empire.  I  find,  from 
a  conversation  I  have  had  with  Sir  Archibald  Michie  (the 
agent-genoral  for  Victoria),  that  he  thinks  as  strongly  as  I 
do,  that  the  designation  of  agent-general  is  a  mistake,  lie 
iinds,  as  I  have  found,  that  there  are  people  who  consider  it 


^ES. 


CONTROL  BY  MEANS  OF  IMPERIAL  LEGISLATION.       187 


•se,  that 
is,  liow- 
!iis  title, 
ion  is,  I 
e  by  the 
dechira- 
)  justice 
le  officer 
tioii,  of 
1.     The 
e  wortljj 
;old  let- 
e  artist 
ase.     It 
re  enii- 
resident 
At  the 
position 
ivG  not. 
00,  that 
of  colo- 
ehitions 
be  dealt 
ns  from 
personal 
of  any 
i  an  ex- 
ove  my 
ovv  than 
to  liave 
should, 
r.     I  do 
ent  any 
0-.     An 
alos^ous 
ict  that 
id,  from 
lie  (the 
ly  as  I 
e.     J  In- 
sider it 


to  mean  a  general  agency  of  the  most  enlarged  description 
of  a  commerci;',!  character. 

''1  have,  &c., 

"Julius  Vogel,  Ajent-general. 

"Tlie  Hon.,  the  Colonial  Secretary,  Wellington,  New  Zealand." 


With  these  substantial 


to  justify  the  chf 


colonies. 


reason: 

of  title,  it  is  pre  able  that,  after  the  example  of  Ca- 
ada,  and  with  the  consent  of  the  imperial  government, 
the  agents-general  of  the  principal  British  colonies  will 
hereafter  be  known  as  the  resident  ministers  in  Eng- 
land for  their  respective  colonies. 

The  general  control  of  the  coastino;  trade  of  British  <^«'«s^'"8 

P  °         .        .  trade  of 

possessions  al)road,  so  far  as  relates  to  foreign  vessels  Uritisii 
taking  part  therein,  is  retained  by  the  imperial  go- 
vernment,J  —  notwithstanding  the  powers  granted  to 
colonial  legislatures,  on  this  subject,  by  the  colonial 
merchant-shipping  act  of  18G9.  Vessels  of  foreign 
states  are  usually  allowed  a  free  commercial  inter- 
course with  Great  Britain  and  her  dependencies,  upon 
terms  of  equality  with  British  vessels;  provided  only  a 
reciprocal  and  equal  freedom  is  conceded  by  such 
foreign  powers.'' 

By  the  colonial  merchant-shipping  act  of  18G9,  the 
legislature  of  any  British  possession  is  empowered  to 
pass  an  act  to  regulate  the  coasting  trade  thereof; 
provided  that  the  same  shall  not  go  into  operation 
until  the  pleasure  of  the  Crown  is  expressly  signilied  ; 
that  all  British  and  colonial  ships  shall  be  entitled  to 
equal  privileges,  and  likewise  ships  of  foreign  nations 
with  whom  privileges  in  respect  to  the  coasting  trade 


J   See  the  Imperial  Rycfulations,  for   (lisalluwinji^   the   Canada  sliip- 

applicable  to  L'nitcid  Stales  vessels  piuji:  act  aniendiuent  in  187S,  mile, 

tiavisatiug  Hritisli  North  American  p.  l.")(). 

waters,  to  prevent  collisions,  iss\ted  ^  Stephen,     Commentaries,    ed. 

hy  the  (pieen  in  council,  on  Nov.  1S7i,  vol.   iii.    ]>.    II.').     Imp.    Act, 

30,.   LSOl.      (Canadian    Orders    in  ;'>!>  an(i    10  Vict.    c.    ;5(!,    ,s.r.    1  U. 

Conn.  p.  l(5:l.)     And  see  the  reasons  Com.  ra[iers,  1878-79,  C.  L'Il'I. 
given  by  the  imperial  gcvernment 


I 


m 


>l 


1 


M' 


188     PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


Maritime 
jurisdic- 
tion in  Ca- 
nada. 


Rcassor- 
tion  of 
imperial 
suprema- 
cy over 
the  colo- 
nies. 


of  any  colony  have  been  granted  by  treaty.'  Pursuant 
to  this  act,  Canada  Statutes  33  Vict.  c.  14  and  38  Vict. 
27  were  passed,  to  regulate  the  coasting  trade  of  the 
dominion ;  and,  by  the  thirtieth  article  of  the  treaty  of 
Washington,  1871,  further  provision  was  made  thereon, 
which,  after  the  necessary  legislation  by  the  respec- 
tive governments  concerned,  was  formally  ratified,  at 
a  conference  held  at  Washington,  on  June  7,  1873,  and 
went  into  operation  on  July  1,  following.'"  ' 

Maritime  jurisdiction  over  the  high  seas  is  a  branch 
of  international  law  which  is  administered  throughout 
the  British  colonies  by  the  imperial  vice-admiralty 
courts  established  therein.  But,  in  187G,  her  Ma- 
jesty's government  consented  to  the  establishment, 
by  dominion  legislation,  of  courts  having  maritime 
jurisdiction  over  navigation  on  the  great  lakes  and 
other  inland  waters  of  Canada.  Accordingly,  in  1877, 
a  Canadian  statute  was  passed,  to  establish  a  maritime 
court  in  the  province  of  Ontario." 

The  constitutional  supremacy  of  the  Imperial  Parlia- 
ment over  all  the  colonial  possessions  of  the  Crown  was 
formally  reasserted  in  1865,  by  an  act  passed  to  re- 
move certain  doubts  respecting  the  powers  of  colonial 
legislatures.  This  act  declares  that  ''  any  colonial  law 
which  is  or  shall  be  in  any  respect  repugnant  to  the 
provisions  of  any  act  of  Parliament  extending  to  the 
colony  to  which  such  law  may  relate,  or  repugnant  to 
any  order  or  regulation  made  under  authority  of  such 
act  of  Parliament,  or  having  in  the  colony  the  force 
and  effect  of  such  act,  shall  be  read  subject  to  such 
act,  order,  or  regulation,  and  shall,  to  the  extent  of 
such  repugnancy,  but  not  otherwise,  be   and  remain 


'  32  and  .13  Viet.  c.  11,  sec.  4.  no.  .'54.     And  Report  of  minister  of 

""    See     Canada     Sess.     I'apers,  justice    (Mr.    IJlake)   on    maritime 

1869,  no.  r)9;  ihid,  1870,  no.  37.  jurisdiction;  ihid.  no   13,  ]>p. 'JO-'JS. 

Orders  in  Council.  \h  101.  Acts.  10  Vict,  c   21;  41  Viet.  c.  1; 

"  See  Canada  feess.  Tapers,  1877,  and  42  Vict.  c.  40. 


■t  \  if 


lES. 

'ursiiant 
58  Vict, 
of  the 
reaty  of 
hereon, 
respec- 
ified,  at 
73,  and 

branch 
)iighout 
miralty 
er  Ma- 
shment, 
maritime 
Les  and 
n  1877, 
laritime 

Parlia- 

wn  was 

to  re- 

3olonial 

ial  law 

to  the 

to  the 

lant  to 

)f  such 

3  force 

o  such 

ent  of 

remain 

nistor  of 
iiiaritinie 
).  2.VJ8. 
ct.  c.  1 ; 


CONTROL  BY    MEANS  OF  IMPERIAL  LEGISLATION.      189 

absolutely  void  and  inoperative."  And,  in  construing 
an  act  of  Parliament,  "  it  shall  be  said  to  extend  to  any 
colony,  when  it  is  made  applicable  to  such  colony  by 
the  express  words  or  necessary  intendment  of"  the 
same." 

By  this  rule,  it  is  clear  that  imperial  acts  are  binding 
upon  the  colonial  subjects  of  the  Crown,  as  much  as 
upon  all  other  British  subjects,  whenever,  by  express 
provision  or  by  necessary  intendment,  they  relate  to  or 
concern  the  colonies.^' 

The  reserved  right  of  intervention  and  control  which 
must  always  remain  in  the  imperial  legislature  may 
appropriately  be  invoked  by  or  on  behalf  of  a  British 
colony,  to  redress  grievances  to  British  subjects  which 
have  resulted  from  the  operation  of  local  institutions 
in  any  part  of  the  empire  ;  or  for  the  purpose  of  amend- 
ing the  constitution  of  a  colony,  for  the  benefit  of  its 
inhabitants.  But  no  appeal  of  this  kind  to  the  su- 
preme authority  of  the  realm  would  be  constitution- 
ally justifiable,  except  under  circumstances  of  sufficient 
gravity  and  importance  to  warrant  imperial  interference 
with  the  rights  of  local  self-government,  so  far  as  they 
have  been  formally  conceded  to  the  particular  colony. 

The  British  North  America  act  of  1867,  in  distribut- 
ing the  powers  exercisable  under  its  provisions,  and 
in  vesting  "  exclusive  "  rights  of  legislation  in  certain 
specified  matters,  either  in  the  dominion  parliament  or 


«>  28  and  20  Vict.  c.  03,  sees.  1,2. 

P  Sir  C.  Adderley  (I'res.  Board 
of  Trade),  Ilaus.  Deb.  vol.  ccxxix. 
p.  l;331.  And  see  an  able  letter  by 
"  Historicus,"  on  this  point,  in 
the  "  Times,"  of  Jnne  1, 1870.  For 
examples  of  imperial  statntes  appli- 
cable to  the  colonies,  see  the  Colo- 
nial Rendition  of  Criminals  Act, 
6  and  7  Vict.  c.  151;  and  10  and  17 
Vict.  c.  118;  the  Colonial  Naval  De- 
fence Act  of  1805  ;  The  Extradition 


Rcsprvod 
powiTs  of 
Imperial 
Parlia- 
niont. 


Acts  of  1870  and  1873 ;  the  :\rerchant 
Shipping  Acts,  as  explained  by  the 
32  and  33  Vict.  c.  11,  sec.  7;  the 
Colonial  Shipping  Act  of  1809  ; 
the  acts  passed  in  1 870  on  coinajre 
and    foreic^n    enlistment;     and    in 

1875,  respectincf  copyrijjht  and  nn- 
seawortiiy  ships.     See  also  the  I'a- 

f>ers  on  Mercliant  Siiippiiifr  LojTis- 
ation  (Canada),  Commons  Papers, 

1876,  vol.  Ixvi.  p.  2!)5,  and  Canada 
Ses8.  Papers,  1876,  no.  22. 


Not  im- 
paired by 
the  Bri- 
tish North 
America 
act. 


M 


'1 


190     PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


in  the  provincial  legislatures,  has  in  no  respect  altered 
the  relation  of  Canadian  subjects  to  the  Imperial  Crown 
or  Parliament,  or  interposed  any  additional  obstacle  to 
prevent  imperial  legislation  in  reference  to  Canada,  in 
any  case  of  adequate  necessity.  The  term  ''exclu- 
sive," as  used  in  the  ninety-first  and  two  following  sec- 
tions of  that  statute,  must  be  understood  as  defining 
and  apportioning  the  limits  of  legislation  in  Canada 
between  the  dominion  and  provincial  jurisdictions, — 
not  as  intended  to  exclude  the  right  of  the  Imperial 
Parliament,  at  its  discretion,  to  make  necessary  laws 
for  the  welfare  and  good  government  of  any  portion 
of  the  empire.*!  For  no  parliament  is  competent,  by 
its  own  act  or  declaration,  to  bind  or  restrain  the  free- 
dom of  action  of  a  succeeding  parliament.'  In  fact, 
legislation,  either  to  remove  doubts  or  to  define  or  en- 
large the  powers  of  the  dominion  parliament,  has  been 
undertaken  by  the  Imperial  Parliament   in   repeated 


inst 
fed( 


peri 
latii 


;.. 


<i  Tt  is  true  that  Ciiief  Justice 
Draper  (in  tlie  case  of  Roijiiui  v. 
Taylor,  ;}G  U.  C.  Q.  IJ.  Rej).  221) 
expressed  an  opinion  that  tiie  term 
"  exchisive  "  in  the  ninety-tirst  sec- 
tion of  the  Ilritish  Nortli  America 
act,  was  "  intended  as  a  more  deh- 
liite  or  extended  renunciation  on 
the  part  of  tlie  Parliament  of  (ireat 
Britain  of  its  powers  over  the  inter- 
nal affairs  of  the  new  dominion,  than 
was  contained  in  the  Imperial  Stat- 
ute 18  Geo.  III.  c.  I'i,  and  the  2Sand 
29  Vict.  c.  G:5,  sees.  3,  4,  5."  But 
we  have  shown  in  the  text  this 
position  is  untenable  ami  inconsis- 
tent with  fact.  The  correct  constitu- 
tional doctrine  on  this  point  is 
clearly  stated  by  Mr.  Justice  Gray 
of  the  Supreme  Court  of  British 
Columbia,  in  his  judc^ment  deli- 
vered on  Sept.  23,  1878,  on  the 
Chinese  tax  bill:  "The  Piriti.sh 
North  America  act,  18(37,  was 
framed,  not  as  altering  or  defining 


the  changed  or  relative  positions  of 
the  provinces  towards  the  imperial 
govermnent,  but  .solely  as  between 
themselves.  .  .  .  Moi'eover,  with  re- 
ference to  the  Imperial  Parliament, 
as  the  paramount  or  sovereign  au- 
thority, it  could  not  be  restrained 
from  future  legislation,  and  there- 
fore, in  that  light,  the  tei'm  would 
have  no  legal  bearing.  .  .  .  The 
British  North  America  act,  1807, 
was  intended  to  make  legal  an  agree- 
ment which  the  provinces  desired  to 
enter  into  as  between  themselves, 
but  which,  not  being  sovereign 
states,  they  had  no  power  to  make. 
It  was  not  intended  as  a  declara- 
tion that  the  imperial  governnuMit 
renounced  any  part  of  its  autho- 
rity." 

"■  See  Burke's  Speech,  in  1772, 
on  the  proposed  alteration  of  the 
Act  of  IJnion  with  Scotland  Pari. 
Hist.  vol.  xvii.  p.  275:  Woiks,  ed. 
1812,  X.  1. 


)NIES. 

it  altered 
ial  Crown 
)stacle  to 
anada,  in 

''  exclu- 
-ving-  seo- 

definino; 
1  Canada 
itions,  — 
Imperial 
Liry  laws 
^  portion 
tent,  by 
^he  free- 
In  fact, 
i  or  en- 
las  been 
•epeated 


ositions  of 
e  imperial 
s  between 
",  witli  re- 
iirliainent, 
iraigu  au- 
restraiued 
Lud  tliere- 
iin  would 
.  .  .    The 
let,   1807, 
an  agree- 
desired  to 
eniselves, 
sovereign 
to  make. 
L  declaia- 
vernment 
ts   aiitho- 

in  1772, 
u  of  the 
nd  Tail, 
oik.s,  ed. 


CONTROL  BY  MEANS  OF  IMPERIAL  LEGISLATION.       191 

instances,  since  the  establishment  of  the  Canadian  con- 
federation.^ 

The  absolute  and  unqualified  supremacy  of  the  Im- 
perial Parliament  over  all  minor  and  subordinate  legis- 
lative bodies  —  and  over  all  legislation  which  had 
previously  been  enacted  by  Parliament  itself — was 
remarkably  exemplified  by  a  decision  of  the  House  of 
Lords,  sitting  as  a  court  of  final  appeal,  on  May  3, 1839, 
in  the  celebrated  Auchterarder  case,  which  led  to  the 
disruption  of  the  Church  of  Scotland  :  — 

Before  the  union  between  the  parliaments  of  England  and   Ri!,'lit  of 
Scotland,  which  took  place  in  1704,  a  settlement  was  effected   i>a,!nj[."^ 
between  the   Crown   and    the   Scottish  Establislied  Church,  nunt  to 
whereb}^  lay  patronage  was  abolished  in  that  commiuiion,  and   .ii^i*s'',iis- 
congregations  were   empowered  to  elect  their  own  ministers,  t^rction. 
This  settlement  was  ratified,  by  an  act  of  the  Scottish  parlia- 
ment, in  1G90.     Immediately  after  the  union  of  the  two  coun- 
tries had  been  accomplished,  the  Imperial  Parliament  in  1707 
enacted  a  law  t'>  declare  that  the  existing  form  of  Presbyterian 
church  government  in  Scotland,  its  doctrine  and  discipline, 
should  continue  unchanged  and  unalterable.*'     Nevertheless, 
in  1711,  Parliament,  iri  direct  contravention  of  the  settlement 
aforesaid,  repealed  the  Scotch  act  of  1690,  and  restored  the 
exercise  of  lay  patronage."      This  legislation  was  protested 
against  by  the  General  Assembly  of  the  Scottish  church,  and 
gave  rise  to  much  dissatisfaction  throughout  Scotland.     The 
General  Assemoly  continued  to  oppose  this  fundamental  altera- 
tion in  their  chu-oh  law ;  and  finally,  in  1834,  passed  a  mea- 
sure known  as  a\e  veto  act,  which  forbade  the  exercise  of 
church  patronage  against  the  express  desires  of  the  particular 
congregation.     Whereupon,  there  ensued  the  memorable  con- 
flict between  the  Established  Church  of  Scotland  and  the  civil 
courts  of  the  United  Kingdom,  which  ended  in  the  total  dis- 
comfiture  of    the  ecclesiastical   body.      The  law   courts   in 
Scotland,  and  ultimately  the  House  of  Lords,  decided  that  the 


f   V 

I  i 


•  See  Imp.  Acts  31  and  32  Vict.  »  The  Act  of  Security,  G  Anne, 

c.  10.');  32  and  33  Vict.  c.  101;  34  c.  7,  sec.  17. 
and  35  Vict.  c.  28;  38  and  3U  Vict.  "  10  Anne,  c.  12. 

cc.  38,  53. 


i  i 


il 


hi 

i  '■ 

III 

i<-' 

: . 

;■  ► 

i'i  : 

/    ■ 

\i 

! 

;    1     ? 

'i  1 

\ 

■  1 

\ 

?■ 

.    t 

ri 

j 

, 

1 

1 

192     PARLIAMENTARY  GOVERNMENT  m  THE  COLONIES. 


act  of  the  general  assembly  restricting  the  pover  of  patrons 
was  in  violation  of  the  imperial  statute  of  IVll.  This  statute 
was  declared  to  be  binding  upon  the  Church  of  Scotland,  — 
notwithstanding  that  it  was  a  direct  infringenifnt  of  the  act 
of  union,  —  inasmuch  as  it  had  emanated  from  the  supreme 
legislative  authority  of  the  realm/ 

These  decisions  warrant  the  conclusion  that  by  the  law 
of  England  the  Imperial  Parliament  is  regarded  as  omni- 
potent and  supreme  in  all  matters  upon  which  it  may 
undertake  to  legislate  ;  and  that  no  court  of  law  would 
venture  to  question  the  right  of  Parliament  to  Icgiclate 
in  any  case  or  upon  any  question,  or  presume  t  j  assert 
that  any  act  of  the  Imperial  Parliament  was  nltm 
vires.'''' 

It  is  equally  certain  that  a  Parliament  cannot  so  bind 
its  successors  by  the  terms  of  any  statute,  as  to  limit 
the  discretion  of  a  future  Parliament,  and  thereby 
disable  the  legisliiture  from  entire  freedom  of  action 
at  any  future  time  when  it  might  be  needful  to  invoke 
the  interposition  of  Parliament  to  legislate  for  the  pub- 
lic welfare. 


I 


Imperial  Dominion  exercisable  over  Self-goverviing  Colonies  : 
e.  In  foreign  relations ;  and  through  the  operation  of  treaties. 

It  is  a  rule  of  international  law,  that  none  but  su- 
preme and  independent  sovereign  powers  are  compe- 
tent to  contract  treaties  with  foreign  nations.    The  only 


'  Maclean  and  Robinson,  House 
of  Lords'  Reports,  p.  238  (Auclite- 
varder  case).  Ilauna,  Memoirs  of 
Dr.  Chalmers,  vol.  iii.  p.  207.  The 
same  principle  was  asserted  by  the 
Court  of  Queen's  Rench  of  Lower 
Canada,  in  1875,  in  the  case  of 
Brossoit  V.  Turcotte,  L.  C.  Jurist, 
vol.  XX.  p.  141. 

*  C.  J.  Cockburn  and  other 
judges  in  the  "  Franconia  "  case, 


Regina  v.  Keyn;  Law  Rep.  2  Ex. 
Div.  pp.  iry2-]00,  207.  _  "If  the 
legislature  of  England,  in  express 
terms,  applies  its  legislation  to  mat- 
ters beyond  its  legislatorial  capacity, 
an  English  court  must  obey  the  Eng- 
lish legislature,  however  contrary  to 
international  comity  such  legislation 
may  be."  Mr.  Justice  Brett,  in 
Niboyet  v.  Niboyet,  Law  Rep.  l?ro- 
bate  Div.  vol.  iv.  p.  20. 


It 


.ti^-^'i^-  ■ 


s^IES. 


CONTROL  BY  THE  OPERATION  OF  TREATIES. 


193 


f  patrons 
is  statute 
(tland, — 
f  the  act 
supreme 

the  law 
as  omni- 

it  may 
w  would 
legislate 
J  assert 
as   idira 

so  bind 
to  limit 
thereby 
action 
invoke 
he  pub- 


lonies  : 
••eaties. 

3llt   SU- 

ompe- 
le  only 

2  Ex. 

If  the 
express 
to  mat- 
iipacity, 
the  Kng- 
trary  to 
islatioii 
rett,  in 
p.  Pro- 


I 


exception  to  this  rule  is  where  the  right  to  conclude  Tronty- 
treaties  in  its  own  behalf,  with  other  states  or  foreign  pmurr 
powers,  has  been  expressly  delegated  to  a  subordinate 
government  by  the  Crown  and  Parliament  of  the 
mother  country.  But  responsibility  for  the  exercise  of 
such  delegated  power  continues  to  rest  upon  the  impe- 
rial authority,  to  the  same  extent  as  for  the  acts  of  any 
other  accredited  public  agents  of  the  Crown/ 

Prior  to  the  abolition  of  the  sovereignty  exercised  by 
the  British  East  India  Company  over  India,  power  was 
delegated  to  the  company,  by  varior  royal  charters, 
which  were  confirmed  by  acts  of  Parliament,  to  make 
treaties  with  the  native  princes  under  certain  restric- 
tions/ 

And  pursuant  to  the  ninety-first  section  of  the  British 
North  America  act  1867,  sub-section  twenty-four,  which 
empowers  the  parliament  of  Canada  to  legislate  in  re- 
gard to  Indiims  and  Indian  lands  therein,  in  connection 
with  the  Imperial  Act  31  and  32  Vict.  c.  105,  which 
authorizes  the  transfer  to  the  dominion  of  Canada  of 
all  territories  "  held  or  claimed  to  be  held  "  bv  the 
Hudson  Bay  Company  in  North  America  under  their 
royal  charter,  authority  has  been  given  by  the  dominion 
governor-general  in  council  to  certain  persons  to  act  Indian 
as  commissioners  to  make  and  conclude  treaties,  in  the 
name  of  her  Majesty,  with  Indian  tribes  inhabiting  the 
territories  of  the  north-west,  which  territories  are  com- 
prised within  the  limits  of  the  dominion  of  Canada.^ 


treiitii's. 


*  Phillimore,  International  Law, 
2d  ed.  vol.  i.  p.  1G7,  vol.  ii.  pp. 
69-71.  And  see  the  correspond- 
ence with  tlie  Canadian  govern- 
ment in  1877,  with  a  view  to  a 
modification  of  the  Franco-English 
treaty  of  18U0,  in  respect  to  the 
French  dnty  on  Canadian  ships. 
Canada  Soss.  Papers,  1878,  no.  <'0. 

y  See  the  case  of  the  Nabob  of 
the  Carnatic  v.  The  East  India  Coni- 


1.3 


pany,  1  Ves.  Jr.  p.  371 ;  and  2  ibid. 
p.  m. 

'  See  Canada  Statutes,  31  Vict. 
c.  42;  33  Viet  c.  3.  Canada  Sess. 
Papers,  1872,  no.  22.  Reports  of 
Indian  Branch  of  Department  of  Se- 
cretary of  State  for  the  Provinces. 
Ill  regard  to  tlie  exclusive  powers  of 
legislation  by  the  parliament  of  Ca- 
nada, concerning  Indians  and  hidi- 
an  lands,  and  tlie  right  of  legislation 


!'i 


!  .  .' 


'^! 


w 


( 


Iiitcr-colo- 
nial  com- 
nicrco  in 
British 
North 
America. 


194       PAIILIAMKNTAIIY  GOVERNMENT   IN  THE  COLONIES. 

In  1875,  an  act  pas.sed  by  the  provincial  legislature 
of  British  Columbia  respecting  crown  lands,  vas  disal- 
lowed by  the  governor-general  in  council,  because  it 
claimed  to  deal  with  Indian  lands,  while,  under  the 
treaty  of  capitulation  of  1760,  the  king's  proclamation 
of  1763,  establishing  governments  in  British  North 
America,  and  subsequent  imperial  legislation,  the  right 
to  make  treaties  with  the  Indians,  and  to  acquire 
Indian  territorial  rights,  is  vested  in  the  Crown  itself, 
and  is  exercisable  only  by  the  governor  or  commander- 
in-chief  in  the  queen'.s  possessions  in  North  Americfi," 

Our  epitome  of  the  historv  of  colonial  self-o-overn- 
ment  in  relation  to  commercial  policy,  as  given  in  the 
preceding  pages,  would  not  be  complete  without  some 
reference  to  the  circumstances  under  which  colonies,  in 
immediate  proximity  with  each  other,  have  obtained 
j^ermission  to  regulate  their  trade  and  tariffs  at  their 
own  discretion ;  either  upon  a  basis  of  reciprocity,  or 
otherwise  as  they  may  decide. 

Several  years  prior  to  the  confederation  of  the  British 
North  American  provinces,  and  while  as  yet  their  closer 
union  was  not  contemplated,  the  expediency  of  afford- 
ing to  these  provinces  greater  facilities  for  intercolonial 
trade,  and  free  commercial  intercourse,  was  the  subject 
of  repeated  discussions,  between  Canada  and  the  other 
North  American  colonies,  on  the  one  hand,  and  the 
imperial  government  on  the  other.  From  1850  on- 
wards to  the  time  of  confederation,  partial  facilities  in 
this  direction  received  the  sanction  of  her  Majesty's 


by  the  provincial  loGfislatures  con- 
cerning laP'^^  surrciuleretl  by  tlie 
Indians  for  tlie  purpose  of  being 
sold,  and  of  wliich  the  Indian  title 
had  been  wholly  pxtingnished,  see 
Mr.  Justice  (J wvniie's  judgment,  in 
Church  "  Fen'ton,  2S  C^  P.  381; 
affiruied  by  the  Ontario  Court  of 
Appeals.     4  App.  11.   159.     la  re- 


gard to  the  relations  between  the 
aboriginal  tribes  in  New  Zealand 
and  tlie  colonial  govern nient,  see 
Commons  Papers,  1864,  vo'..  xli. 
p.  L>19. 

*  Report  '^f  II.  Bernard,  deputy 
minister  of  justice,  and  proceed- 
ings thereon,  in  Canada  Sess.  Pa- 
pers, 1877,  110.  89,  pp.  2-7. 


bei 

of 

ty'f 

desi 

ver 


b 

Minis 
wards 


KS. 

lature 
di  sal- 
use  it 
;r  the 
nation 
North 
;  right 
cquire 
itself, 
ander- 
"icf:." 
overn- 
in  the 
b  some 
lies,  in 
)tained 
t  their 
jity,  or 

British 
closer 
afTord- 
olonial 
subject 
other 
nd  the 
'50  on- 
ities  in 
ijesty's 


ween  the 

Zealand 

nent,    see 

vol.    xli. 

d,  deputy 

proceed- 

S(!ss.  i'a- 


CONTROL  BY  THE  OPERATION  OF  TREATIES. 


195 


government.  But  by  sections  121  to  123  of  the  British 
North  America  act  of  1867,  all  impediments  in  the  way 
of  reciprocal  tradti  were  absolutely  removed,  and  the 
dominion  parliaiiient  w^as  authorized  to  regulate  all 
such  matters  at  its  unfettered  discretion.^ 

The  Aastralian  colonies  of  New  South  Wales,  Tas-  intcrcoio- 
mania,  South  Australia,  and  Victoria,  together  with  nurco  in 
New  Zealand,  were  not  long  in  preferring  a  claim  to  ''  """^"^  '*" 
similar  commercial  advantages.  In  1871  they  addressed 
a  formal  application  to  the  imperial  government  for 
liberty  to  make  arrangements  between  themselves  for 
the  establishment  of  a  commercial  union,  upon  the  basis 
of  a  commr'i  tariff,  akin  to  that  which  had  been  effected 
in  Canada,  under  the  British  North  America  act.  But, 
in  addition  to  this,  they  demanded  that  no  treaty  should 
be  concluded  by  the  imperial  government  wdtli  any  fo- 
reign power,  which  should  conflict  with  the  exercise  of 
intercolonial  reciprocity;  and  that  imperial  interference 
with  intcicolonial  fiscal  legislation  should  absolutely 
cease.  They  likewise  claimed  liberty  for  the  several 
Australian  legislatures  to  impose  such  duties  on  imports 
from  other  places,  not  being  differential,  as  each  colony 
might  think  fit  to  enact. 

On  July  13,  1871,  the  colonial  secretary  (Lord  Kim- 
berley)  addressed  a  circular  despatch  to  the  governors  • 
of  the  colonies  aforesaid,  stating  the  views  of  her  Majes- 
ty's government  in  reference  to  these  demands.  This 
despatch  wjis  carefully  considered  by  the  several  go- 
vernments concerned,  and  their  opinions  freely  expressed 
upon  it.  In  reply  to  their  joint  statements,  a  further 
despatch  was  written  on  April  19,  1872,  by  the  colonial 
secretary,  which  explained  the  extent  to  which  the 
imperial    government  was  willing  to  accede  to  their 


M 


''  See  the  Memorandums  of  the     nuary,  and  3  Sept.  1808,  in  Canada 
Minister   of    Finance    (Mr.,   after-     Sess.  Papers,  1869,  no.  47. 
wards  Sir  John   Hose)   of    13   Ja- 


196 


PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


r 


Austra- 
lian colo- 
nies du- 
ties act. 


requirements.  While  desirous  to  satisfy  all  reasonable 
claims,  for  the  removal  of  restrictions  upon  commercial 
intercourse  between  the  Australian  colonies, "her Majes- 
ty's government  apprehend  that  the  constitutional  right 
of  tlie  queen  to  conclude  treaties  binding  all  parts  of 
the  empire  cannot  be  questioned,  subject  to  the  discre- 
tion of  the  Parliament  of  the  United  Kingdom,  or  of 
the  colonial  pari  v,s,  as  the  case  may  be,  to  pass 

any  laws  which  may  bo  required  to  bring  such  treaties 
into  operation."  '^ 

In  February,  1873,  an  intercolonial  conference,  held 
at  Sydney,  New  South  Wales,  and  including  delegates 
from  the  colonies  above  mentioned,  as  well  as  from 
Queensland  and  Western  Australia,  after  duly  consider- 
ing Lord  Kimberley's  despatch  of  April  19,  1872,  and 
other  correspondence  on  the  subject,  resolved  again  to 
urge  the  claims  of  the  Australasian  colonies  for  the  re- 
moval of  all  imperial  restrictions  which  prevented  the 
establishment  of  intercolonial  commercial  reciprocity.*^ 

Upon  being  informed  by  telegram  of  the  proceedings 
at  this  conference,  her  Majesty's  government  lost  no 
time  in  submitting  to  Parliament  a  bill  to  give  effect 
to  the  strongly  and  repeatedly  expressed  wish  of  the 
Australian  colonies  on  this  subject.  The  "Vustralian 
Colonies  Duties'  Act,  1873,"  was  passed.  It  gives  full 
power  to  each  of  the  colonies  concerned  to  make  laws, 
imposing  or  remitting  duties,  whether  differential  or 
preferential  or  otherwise,  for  or  against  one  another. 
It  also  extends  the  powers  of  the  colonial  legislatures 
in  Australia  to  regulate  the  duties  on  the  importation 
of  articles,  not  the  growth,  produce,  or  manufacture  of 
Australia  or  New  Zealand.  But  it  retains  the  prohibi- 
tion against  differential  duties  on  goods  imported  into 


"  New  Zealand,  House  of  Hep.  Journals,  1871,  appx.  A.  no.   1,  a.  p. 
46.     South  Australia  Pari.  Proceed.  1872,  vol.  iii.  no.  104. 
d  Ibid.  1873,  vol.  ii.  no.  31. 


-   \. 


''   li 


'f 


)NIES. 

sonable 
mercial 
r  Majes- 
lal  right 
parts  of 
)  discre- 
n,  or  of 
to  pass 
treaties 

ce,  held 
elcgates 
as  from 
lonsider- 
572,  and 
again  to 
r  the  re- 
ited  the 
rocity.*^ 
ccedings 
lost  no 
effect 
of  the 
Listralian 
ives  full 
\e  laws, 
ntial  or 
another, 
islatures 
ortation 
icturr^  of 
prohibi- 
ted into 

0.  1,  a.  p. 


CONTROL  BY  THE  OPERATION  OF  TREATIES. 


197 


the  colonics  from  foreign  countries  or  from  Great 
Britain.  And  it  forbids  the  levying  of  duties  upon 
articles  imported  into  Australia  for  the  use  of  the  impe- 
rial army  or  navy,  and  the  levying  or  remitting  of  any 
duty  contrary  to  or  at  variance  with  any  existing  treaty 
between  her  Majesty  and  any  foreign  nation.'' 

This  timely  concession  of  increased  powers  of  com- 
mercial legislation  has,  for  the  present,  proved  un- 
productive of  the  results  anticipated.  The  colonies 
concerned  have  been  unable  to  agree  upon  any  arrange- 
ment for  giving  effect  to  the  beneficent  intentions  of  the 
Imperial  Parliament;  and  though  six  years  have  elapsed 
since  the  passing  of  the  act  of  1873,  it  still  remains  a 
dead  letter/ 

It  is,  however,  a  well-understood  principle,  that  the  Extension 
privileges  and  advantages,  connnercial  or  otherwise,  priv'ik'ges 
which  have  been  accorded  to  a  nation,  pursuant  to  any 
treaty  or  convention  entered  into  with  another  nation, 
do  merely  extend  to  the  particular  state  or  sovereign 
power  which  has  contracted  the  same,  to  the  exclusion 
of  the  colonial  possessions  of  such  power  unless  they 
are  expres.sly  named  in  the  treaty ;  and  that  colonies 
not  so  expressly  included  cannot  claim  to  be  admitted 
to  share  in  the  treaty  privileges  enjoyed  by  the  mother 
country,  as  of  right,  on  the  ground  that  they  form  part 
of  the  empire.  The  colonies  of  a  high  contracting 
power,  not  included  in  a  treaty,  can  only  be  admitted 
to  a  participation  in  the  benefits  of  the  same  by  a 
further  treaty  or  convention  made  on  their  behalf;  or 
by  a  law,  to  be  passed  by  the  foreign  state,  admitting 
them  to  the  enjoyment  of  the  advantages  sought  to  be 
attained." 


to  colo- 
nies. 


*  Ibid.  1873,  vol.  lii.  no.  59. 
See  also  Com.  Papers,  1873,  vol. 
xlix.  p.  27;  Act  36  Vict.  c.  22. 
Hans.  Deb.  vol.  ccxv.  p.  2007,  vol, 
ccxvi.  p.  157.  And  see  Addeiley, 
Colonial  Policy,  p.  60. 


^  Earl  Grey,  in  Nineteenth  Cen- 
tury, June,  1879,  p.  944. 

8  See  diplomatic  correspondence 
concerning  liritish  Columbia.  C;i- 
nada  Sess.  Papers,  1876,  no.  42. 
Correspoudeuce  respecting  the  duty 


i -i  1 


ii  1 


(  f1 

i! 

ii 


i  t 


*  •\  »•    .*••'*.-. 


■  ^«  -«  •  *«  —•■■VV 


■ '    I 


ii! 


198       rAULIAMENTAUY  GOVKKNMENT  IN  THE  COLONIES. 

But,  in  point  of  fact,  in  the  treaties  of  commerce  and 
navigation  now  in  force  between  Great  Britain  and 
upwards  of  forty  independent  foreign  powers,  such 
treaties  have  been  expressly  made  applicable  to  the 
British  "  dominions,"  "  possessions,"  or  "  colonies,"  ex- 
cept in  the  case  of  the  following  nations;  viz.  China, 
Japan,  Muscat,  Siam,  and  the  Sandwich  Islands,  France, 
Spain,  the  Netherlands,  and  the  United  States  of  Ame- 
rica. As  regards  the  coasting  trade,  it  is  customary  to 
provide  that  the  privilege  of  sharing  therein  shall  only 
be  granted  to  those  colonies  and  foreign  possessions  of 
any  contracting  power  of  which  the  coasting  trade  shall 
have  been,  or  shall  be  hereafter,  open  to  foreign  ves- 
sels upon  equal  terms.^' 

The  Italian  and  French  governments,  having  noti- 
fied the  British  government  of  their  intention  to 
terminate  the  existing  commercial  treaties,  between 
themselves  and  Great  Britain,  and  propositions  being 
entertained  for  the  negotiation  of  fresh  treaties,  her 
Majesty's  secretary  of  state  for  foreign  affairs,  on  Dec. 
31,  1877,  communicated  with  the  colonial  secretary  in 
Fciercnce  to  the  inclusion  of  the  colonies  therein.  In 
reply.  Lord  Carnarvon  intimated  the  propriety  of  con- 
sulting the  governors  of  colonies  possessing  responsible 
government  in  reference  to  the  terms  of  the  proposed 
treaties  before  deciding  upon  the  same.  He  accord- 
ingly addressed  a  circular  despatch  to  the  principal  colo- 
nial governments,  transmitting  a  copy  of  a  draft  article, 
for  insertion  in  future  treaties  of  commerce,  applying 
the  same  to  the  British  colonies. 

This  article  is  as  follows :  "  The  stipulations  of  the 
present  treaty  shall  be  applicable  to  the  colonies  and 
foreign  possessions  of  the  two  high  contracting  parties 


i 


on  Canadian  ships  sold  in  France:     force,  and  their  special  ]irovisions, 
iUd.  1877,  no.  100;  1878,  no.  70.       in  Commons  Tapers,  1878-79,  C. 
•»  See  the  list  of  treaties  now  in    2424. 


^^ 


2YCC  and 
iiiii    and 
rs,   such 
(   to  the 
icV'  ex- 
:.  China, 
,  France, 
of  Ame- 
3mary  to 
liall  only 
)ssions  of 
ade  shall 
eign  ves- 

ing  noti- 

intion   to 

between 

»ns  being 

ities,  her 

,  on  Dec. 

Tetary  in 

rein.     In 

y  of  eon- 

sponsible 

proposed 

e  accord- 

sipal  colo- 

ft  article, 

applying 

ns  of  the 
onies  and 
ig  parties 


1  ]ivovisioiis, 
.878-79,  C. 


CONTROL  BY  THE  OPEIIATTON  OF  TREATIES. 


199 


named  in  thi.s  article."  [  Here  insert  the  names  of  the 
colonies,  &c.,  to  l)e  included  in  the  treaty.]  They 
"  shall  also  be  a;^plicable  to  any  colony  or  foreign 
possession,  &c.,  not  included  in  this  article,  upon  the 
conclusion  by  the  two  high  contracting  parties  of  a 
supplementary  convention  to  that  eflect."  ' 

By  this  means,  the  hnperial  government  is  endea- 
vouring to  secure  for  all  her  colonies,  the  benefits  she 
has  herself  obtnined  by  the  negotiation  of  commercial 
treaties  with  foreign  ])owers ;  while,  at  the  same  time, 
she  retains  in  her  own  hands  the  right  of  deciding 
upon  the  terms  of  all  treaties,  and  the  extent  to  which 
it  may  be  expedient  to  apply  the  same  to  the  colonial 
possessions  of  the  empire. 

But  though  the  imperial  government  has  strictly  main- 
tained the  principle  that  the  negotiation  of  treaties 
with  foreign  powers  is  a  matter  of  imperial  concern, 
to  be  conducted  only  by  agents  specially  authorized 
by  the  Crown,  and  by  ministers  directly  responsible  to 
the  British  Parliament,J  a  concession  has  been  made  of 


Privilppoa 
to  Caiiadii 
ill  iK'jjio- 

tiatJDfr 

trculies. 


*  Xew  Zealand  Pari.  Papers, 
1878,  appx.  A.  2,  pp.  9-12. 

J  St'e  British  Xortli  America  Act, 
1807,  sec,  i'V2  ;  8outli  Africa  Act, 
1S77,  sec.  ')l.  In  the  years  1871, 
1872,  and  1873  mnch  correspondence 
passed  between  the  imperial  and 
Australian  governments,  with  a 
view  to  the  modification  of  the 
treaty-making  ]iower,  so  as  to  en- 
.nble  certani  of  the  principal  co- 
lonies of  Great  Britain  to  make 
reciprocal  arrangements  with  fo- 
reign states.  But  the  imperifvl  go- 
vernment would  not  surrender  the 
])rerogative  rights  and  obligations 
of  tlie  Crown  in  its  international 
relations,  and  would  oidy  consent 
to  such  a  modification  of  the  ex- 
isting practice  as  would  place  the 
Australian  colonies,  practically,  in  a 
])osition  towards  eiicli  otli«r  similar 
to  that  of  the  provinces  which  form 
part  of   the   dominiou   of   Canada. 


This  concession  was  embodied  in 
the  Australian  colonies  duties  act, 
187;},  already  referred  to.  (See  ante, 
p.  lOG.)  For  the  correspondence  on 
this  subject,  see  Commons  Papers, 
1872,  C.  570  ;  ihn!.  1873,  C.  70:}. 
Also,  New  Zealand  House  of  Kepres. 
Journals,  1871,  appx.  vol.  i.  p. 
48;  ihid.  1872,  appx.  A.  no.  1,  pp. 
27,  47.  Ihi'L  1873,  appx.  A.  no.  1, 
p.  13;  no.  2,  pp.  7-12.  And  see  a 
motion  in  the  Canadian  House  of 
Commons,  on  JNlarch  21,  1870,  for 
an  address  to  the  governor-general 
to  urge  the  expediency  of  obtaining 
from  the  imperial  government  all 
necessary  powers  to  enable  t'  '?  go- 
vernment of  the  dominion  to  enter 
into  direct  cominunicalion  with 
otiier  British  possessions,  and  with 
foreign  powers,  for  the  jturpose  of 
extending  the  trade  and  commerce 
of  Canada  abroad.  An  amendment 
was  proposed  to  this  luotion  on  the 


I 


It 


i    Jl 


w 


I 


^         111 

1,     « 


200       PAKLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


m 


late  years  to  the  dominion  of  Canada,  in  the  negotia- 
tion of  treaties  between  her  Majesty  and  the  United 
States  of  x\merica  which  have  a  special  bearing  upon 
Canadian  interests. 

In  1871,  the  prime  minister  of  Canada  (Sir  John  A. 
Macdonald)  was  appointed  by  the  queen  to  be  one  of 
her  high  connnissioners  and  plenij)ott'ntiaries  to  frame 
and  conclude  upon  the  treaty  of  Washington,  expressly 
to  represent  Canada  upon  the  commission,  and  in  order 
that  the  important  questions  relating  to  the  trade  and 
commerce  and  fisheries  of  Canada  might  be  duly  con- 
sidered and  determined  upon  with  the  assistance  of  the 
most  competent  authority.'' 

Again,  in  1874,  the  imperial  government  acquiesced 
in  a  proposal,  made  by  the  privy  council  of  Canada 
through  the  governor-general,  that  the  British  minis- 
ter at  Washington  should  be  authorized  to  enter  into 
negotiations  with  the  government  of  the  United  States 
for  a  treaty  to  establish  reciprocal  trade  between  Ca- 
nada and  the  United  States.     And  they  agreed  to  asso- 


;  :l.  I 


part  of  ministers,  deprecating  any 
attempt  to  enter  into  treaties  with 
foreign  powers  "  without  the  strong 
anil  direct  support  of  the  motiier 
country,"  and  asserting  tiiat  the 
object  in  Aiew  "can  be  best  ob- 
tained by  the  concurrent  action  of 
the  imperial  and  Canadian  govern- 
ments." Tiiis  amendment  was 
agreed  to,  on  a  division.  The  for- 
mal stei)s  necessary  to  empower 
agents  sent  from  a  British  colony 
lor  the  purpose  of  obtaining  an 
extension  of  commercial  relations 
between  such  colony  and  any  fo- 
reign country,  and  the  proceedings 
leipiiied  to  give  effect  to  the  same, 
—  so  as  to  bring  into  the  shape  of 
international  engagements  whate.er 
arrangements  miglit  be  ultimately 
considered  acceptable,  as  well  to  the 
colonies  concerned  as  also  to  the 
foreign  j)ovvers  in  cpiestion,  —  are 
detailed  iu  a  memorandum  from  the 


nnder-secretary  of  foreign  affairs 
(Mr.  IIamnu)nd)  to  tlie  under-se- 
cretary  at  the  colonial  office,  dated 
Nov.  11,  ISO.j;  in  Commons  Tapers, 
1873,  vol.  xlix.  p.  12. 

^  (iovernor-generars  Speech  to 
rarliament  of  Canada,  on  Feb.  15, 
1871.  Desjiatch  of  the  Eail  of  Kim- 
berley  (colonial  secretary)  to  (lo- 
vernor-General  Lisgar,  of  June  17, 
1S71,  Canada  Sess.  l*apers,  1872, 
no.  18.  Previously  to  this  imi)or- 
tant  concession  to  Canadian  inter- 
ests, the  inii«'rial  government  had, 
in  180."),  cordially  assented  that  the 
British  minister  at  Washington 
should  "act  in  concert  with  the 
Canadian  government"  in  negoti- 
ating with  the  American  govern- 
ment for  a  renewal  of  the  reciprocity 
tieaty.  See  Canada  Sess.  I'apers, 
1867-78,  no.  G3,  and  ihid.  1869, 
no.  59. 


ai*)is^»i:. -.^^ 


IS. 

gotia- 

Jnited 

upon 


)lin  A. 

»ne  of 

frame 

)ressly 

order 

le  and 

y  con- 

of  the 

liesced 
Canada 

minis- 
er  into 

States 
2n  Ca- 
o  asso- 


affairs 
.iiulor-se- 
dated 
Papers, 

loech  to 
\'.h.  15, 

of  Kini- 
to  (lo- 
iiiie  17, 
1872, 

ilUlH)!"- 

vu  iiiter- 
'iit  had, 
liat,  tlie 
uiiigtou 
ith    tlie 
lu'cjoti- 
"ovcni- 
ciprocity 
TapiMS, 
1869, 


CONTROL  BY  THE  OPERATION  OF  TREATIES. 


201 


ciate  with  the  British  minister  a  commissioner  (Se- 
nator George  Brown)  named  by  the  Canadian  govern- 
ment; but  with  the  distinct  understanding  that  the 
Canadian  commissioner  should  act  under  imperial  in- 
structions, and  that  all  propositions  to  be  made  to  the 
American  government  should  be  previously  submitted 
to  her  Majesty's  secretary  of  state. 

The  dominion  government  expressed  their  appre- 
ciation of  the  regard  shown  to  their  proposals,  in  rela- 
tion to  reciprocity  with  the  United  States,  by  her 
Majesty's  government,  and  promised  that  they  would  not 
suggest  any  modification,  in  matters  of  trade  and  com- 
merce, which  would  injuriously  affect  imperial  interests. 

In  June,  1874,  a  draft  commercial  treaty  was  agreed 
upon  by  the  British,  Canadian,  and  American  commis- 
sioners, and  submitted  for  the  ratification  of  the  impe- 
rial government  and  of  the  United  States  Senate.  It 
was  approved  by  her  Majesty's  government,  but  failed 
to  receive  the  sanction  of  the  American  Senate.^ 

On  Nov.  26,  1874,  while  tliese  negotiations  were  still 
pending,  a  deputation  from  certain  British  chambers 
of  commerce  waited  upon  the  secretary  of  state  for 
foreign  affairs  (Lord  Derby)  and  tlie  secretary  of  state 
for  the  colonies  (Lord  Carnarvon),  to  express  their  fears 
that  the  proposed  reciprocity  treaty  between  Canada 
and  the  United  States  was  likely  to  prove  prejudicial  to 
imi)ortant  branches  of  British  industry ;  and  that,  con- 
trary to  the  rule  hitherto  invariably  observed  in  such 
treaties,  it  would  place  the  mother  country  in  a  worse 
position,  commercially,  than  other  countries,  in  regard 
to  the  importation  of  British  goods  into  Canada. 

Entirely  concurring  in  the  conviction  that  it  was 
the  bounden  duty  of  her  Majesty's  government  to 
insist  that  British  trade  should  not  be  placed  at  a  dis- 


>  Comnious  Papers,  1874,  vol.  Ixxv.  pp.  931-950. 


1 

i 

• 

■5 

1 

\ 

1 

■. 

[ 


*. . 


:i. 

r    ' 

i( 

1 

t   11 

li 

*  1 

Tiiforjiro- 
tiitioii  ami 
onfoix'o- 

llU'Ilt  of 

treulic's. 


202       rAllLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

advantage,  as  compared  with  otlier  countries,  in  any 
treaties  which  might  be  entered  into  on  behalf  of  colo- 
nies,—  and  also  to  forbid  the  imposition  of  dillerential 
duties  in  favour  of  the  United  States,  as  against  Great 
Britain,  in  any  such  treaty,  —  Lord  Derl)y  assured  the 
deputation  that  there  was  no  intention,  on  the  part 
of  her  Majesty's  government,  to  allow  such  a  distinc- 
tion to  be  drawn,  and  nothing  in  the  proposed  tieaty 
to  warrant  the  conclusion  that  the  (Janachan  govern- 
ment were  in  favour  of  it.  As  to  whether  the  elfect 
of  the  treaty  would  be  to  increase  taxation  on  other 
than  British  goods,  that  was  a  question  hereafter  to  be 
considered  by  the  secretary  of  state  for  the  colonies.  Sa- 
tisfied with  these  assurances,  the  deputation  withdrew.'" 

In  1870,  the  imperial  authorities  permitted  Sir  A.  (Jalt, 
as  representing  the  Canadian  government,  to  conduct 
negotiations  for  improved  commercial  intercourse  be- 
tween Canada,  France,  and  Spain. 

Finally,  it  should  be  observed  that  the  responsibility 
of  determining;  what  is  the  true  construction  of  a 
treaty,  made  by  her  Maj'esty  with  any  foieign  power, 
must  remain  with  the  imperial  government,  wlio  can 
alone  decide  how  far  Great  Britain  should  insist  upon 
the  strict  enforcement  of  treaty  rights,  whatever  opi- 
nions may  be  entertained  upon  the  subject  in  any  colony 
specially  concerned  therein.  On  the  other  hand,  the 
legislature  in  any  colony  is  free  to  determine  whether 
or  not  to  pass  laws  necessary  to  give  effect  to  a  treaty 
entered  into  between  the  imperial  government  and 
any  foreign  power,  but  in  which  such  colony  has  a 
direct  interest." 


'"  Loiuloii  Times,  Nov.  27,  1S7I,  Colmnliia  was  includod  in  tlic  pur- 

p.  0.  view  of  tiic  Wasliiii;4(()ii  treaty,  iiot- 

"  Karl  of  Kimborlcy's  (l(>s]iati'Iios  vvitlistandiiic  that  slic  did  not  iMi- 

of  Marc'ii  17  and  Jiiiit>  17.  lS71,t()  tcr  the  dominion  nntil  aiiont  tlin'o 

povcrnor-niMioral  of    Canada,   Can.  montlis  after  the  troaty  wiw  signed. 

8ess.    Papers,  1872,  no.    18.     Cor-  llwl.  1876,  no.  J-*, 
respondenoe  a«  to  wiiether  British 


:mimii»i).;. 


CONTROL  BY  THE  OPERATION  OF  TREATIES. 


203 


Complaints  of  the  non-observance  by  foreigners  of 
treaty  stipulations,  and  requests  for  the  more  expe- 
ditious carrying  out  of  treaty  requirements,  should 
be  addressed  by  her  Majesty's  government  to  the  fo- 
reign power  in  question  ;  although,  for  convenience,  it 
is  usual  to  permit  the  governor-general  of  Canada 
to  conununicato  directly  with  the  IJritish  minister  at 
Washington  on  such  matters.  Under  these  circum- 
stances, however,  it  becomes  the  duty  of  the  governor- 
general  to  notify  her  Majesty's  government,  through 
the  colonial  secretary,  of  any  representations  made 
or  proceedings  taken  by  the  dominion  government 
through  her  Miijesty's  minister,  and  of  the  answers 
received  to  the  same." 

Anotlier  matter  will  now  claim  our  attention,  which  Extradi- 
is  appropriately  icgr.Iated  by  means  of  treaties  between  fei'idc.'rs" 
the  motlier  country  and  foreign  powers;  namely,  the 
extradition  of  criminal  offenders. 

From  a  very  early  period,  the  nations  of  Europe  have 
made  provision  by  treaty  for  the  mutual  surrender  of 
criminals  escaping  from  justice  and  seeking  refuge  in 
other  lands.  But  with  the  exception  of  a  partial  ar- 
rangement to  this  effect  by  the  twenty-seventh  article 
of  "Jay's"  treaty  of  1704,  which  expired  on  the  break- 
ing out  of  the  war  of  1812,  no  treaty  of  this  kind 
appears  to  have  been  made  between  Great  Britain  and 
the  United  States  of  America  until  1842,  when  the  sub- 
ject was  included  in  the  Ashburton  treaty.'' 

Meanwhile,  notwithstanding  the  lack  of  any  treaty 
obligaticms  on  this  subject,  legislative  provision  for  the 
rendition  of  fus^itives  from  justice  was  made  in  1822  bv 
the  legislature  of  the  state  of  New  York,  and  in  1833 
by  the  parliament  of  the  late  province  of  Upper  Canada. 


TiUiadaSoss.  PaporH,1876,no,s.  p  Sen   rnrr.nnins   Papers,   1876, 

110,  111;  ihi,!.  1877.  iios.  14,  101;    vol.  Ixxxii.  p.  L'T!). 
ibid.  1878,  iiosi.  70,  Vl'i. 


■i!i 


■;,!     K 


f  i  f 


204       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


,'  '  \ 


The  general  principle  of  legislation,  by  local  ordi- 
nance or  statute,  for  the  delivery  to  foreign  govern- 
ments of  fugitive  criminals,  has  been  repeatedly 
admitted  in  various  colonies  and  possessions  of  the 
British  Crovvn,  under  circumstances  which  have  made  it 
difficult  or  impossible  to  provide  for  the  same  by  treaty. 
But  it  should  be  stated  that  eminent  judges  of  the  fede- 
ral courts  of  the  United  States  have  decided  that  the 
statute  enacted  by  the  New  York  legislature  in  1822, 
above  referred  to,  is  in  contravention  of  the  constitu- 
tion of  the  United  States,  article  one,  section  ten,  which 
says  that  "  no  State  shall  enter  into  any  treaty ;  "  and 
it  was  observed  by  Judge  Curtis  "  that,  in  the  fifty  years 
which  had  elapsed  since  the  passage  of  the  state  law, 
no  case  is  remembered  in  which  a  governor  has  under- 
taken to  make  extradition  under  it.  During  this  half- 
century,  it  has  been  considered  that  the  national 
government  had  exclusive  jurisdiction  over  the  subject, 
and  that  the  act  of  the  state  lei^islature  was  unconstitu- 
tional  and  void." ''  This  is  unquestionably  sound  doc- 
trine, and  equally  applicable  to  legislation  by  British 
colonies  where  there  has  been  no  previous  treaty  or  act 
of  the  Imperial  Parliament  to  authorize  the  same.  For, 
in  view  of  the  imijiortance  of  regulating  all  interna- 
tional questions  upon  a  uniform  basis  and  by  the  su- 
preme authority  of  the  empire,  it  is  obvious  that  the 
extradition  of  criminals  should  be  provided  for  by 
treaties  between  the  powers  concerned  therein,  or  by 
special  legislation  based  upon  formal  treaties. 

By  the  one  hundred  and  thirty-second  section  of  the 
British  North  America  act  of  1867,  it  is  enacted  that 
"  the  parliament  and  government  of  Canada  shall  have 
all  powers  i  ecessary  or  proper  for  performing  the  obli- 


<»  American  Law  Review,  vol.  vii.  2  Sum.  182, 12  Vermont,  fi.3G.  Peo- 
p.  187,  Tlohnes  v.  Jonnison,  14  pliwr /y/.  Mailow  f.  Curtis,  50  New 
I'eters,  510.   United  States  v.  Davis,     York  llep.  o21. 


CONTROL  BY  THE  OPERATION  OF  TREATIES. 


205 


iritiish 
or  act 
For, 

^erna- 

iie  sii- 

at  the 

or   by 

or  by 


gations  of  Canada,  or  of  any  province  thereof,  as  part  Extradi- 
of  the  British  Empire,  towards  foreign  countries,  arising  cauiida."' 
under  treaties  between  the  empire  and  such   foreign 
countries." 

This  clause  of  the  Confederfii,ion  act  embodied  no  new 
principle,  but  merely  conferred  upon  the  dominion  gov- 
ernment the  powers  foi'merly  exercisable  by  tlic  several 
provinces  in  Canada.  Thus,  the  Imperial  Statute  6  and 
7  Vict.  c.  76,  (as  amended  by  8  and  9  Vict.  c.  120), 
passed  to  give  effect  to  the  Ashburton  treaty,  while  it 
expressly  applies  to  the  colonies  in  cases  where  no  colo- 
nial legislation  existed  in  reference  to  extradition,  pro- 
vides for  the  suspension  of  the  act  upon  suitable 
provision  being  made  by  the  Canadian  legislature  for 
carrying  out  the  object  of  the  same.  And  the  opera- 
tion of  the  imperial  act  was  suspended  accordingly  by 
an  order  of  the  queen  in  council,  upoii  the  passing  of 
an  act  on  this  subject  by  the  legislature  of  the  pro:' » see 
of  Canada  in  1849. 

In  June,  1868,  the  imperial  statute  was  again  sus- 
pended, upon  the  passing  of  a  dominion  act  to  enforce 
throughout  the  Avhole  of  Canada  the  objects  contem- 
plated by  the  aforesaid  treaty." 

In  1870,  the  imperial  law  relating  to  the  extradition 
of  criminals  was  amended  by  the  Act  33  and  34  Vict. 
c.  52.  This  statute  did  not  alter  the  Canadian  law, but  by 
its  eighteenth  section  authorized  the  same  to  be  carried 
into  effect  by  an  order  in  council  to  be  issued  pursuant 
to  this  act.  But  this  applies  only  to  Canadian  legisla- 
tion as  aforesaid,  for  the  purpose  of  carrying  out  the  Ash- 
burton treaty.  As  respects  foreign  countries  other  than 
the  United  States  of  America,  any  extradition  treaties 


If- 


t  ; 


Teo- 
50  New 


'  Act  31  Vict,  c.  01.     This   act  Orflers  in  Council,  pp.  379,  :^80.  The 

was  reserved,  l)ut  subsequently  as-  act  was  amended,  m  respect  to  the 

sented  to.      For  orders  in  council  to  classes  of  Mia,i;istrates  empowered  to 

give  effect  to  the  same,  see  Canadian  act  under  it,  by  M  Vict.  c.  '2o. 


206       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


Extradi- 
tion law  in 
Canada, 
and  in 
Victoria. 


which  extend  to  Canada  must  (as  hereinafter  explained) 
be  put  into  operation  under  the  provisions  of  the  imperial 
act  of  1870,  as  amended  by  the  Act  36  and  37  Vict, 
c.  60,  passed  in  1873. 

In  the  colony  of  Victoria,  Australia,  by  "  the  extra- 
dition act  of  Victoria,  1877,"  the  imperial  extradition 
acts  of  1870  and  1873  are  directed  to  be  administered 
by  conferring  upon  the  colonial  police  magistrates  the 
hke  powers  and  authorities  for  the  surrender  of  fugitive 
criminals  as  are  by  the  said  acts  vested  in  similar  func- 
tionaries in  the  United  Kingdom.     The  Victoria  statute 
will  be  enforced  by  the  promulgation  within  the  colony 
of  an  imperial  order  in  council,  to  be  issued  under  the 
eighteenth  section  of  the  act  of  1870,  above  mentioned. 
As  respects  the  dominion  of  Canada,  larger  powers 
have  been  asserted.     The  Canadian  privy  council  con- 
tend that  the  provisions  of  all  extradition  treaties  en- 
tered into  by  Great  Britain  with  foreign  powers  shoidd 
be  carried  into  effect  in  Canada  by  means  of  local  legis- 
lation, pursuant  to   the  one  hundred  and  thirty-second 
section  of  the  British  North  America  act,  1867,  already 
cited  in  this  connection.     The  practical  advantages  of 
such  an  arrangement  are  obvious  and  unquestionable. 
But  hitherto  dilHculties  have  arisen  in  L*"ivinii^  full  effect 
to  the  same. 

After  the  passing  of  the  imperial  act  of  1870,  two 
general  measures  on  the  subject  of  extradition  were 
enacted  by  the  Canadian  parliament,  —  one  in  1873,  the 
other  in  the  following  year.  By  these  statutes,  it  was 
proposed  to  apply  to  all  other  foreign  states  the  pro- 
visions of  the  Canadian  law  which  had  proved  so  effec- 
tual and  convenient  in  the  case  of  fugitives  to  or  from 
the  United  States  claimed  under  the  Ashburton  treaty. 
But  these  acts  were  not  altogether  approved  by  the 
law  officers  of  the  Crown  in  England ;  and,  though  not 
formal)}^  disallowed,  they  have  not  been  put  in  force  by 


CONTROL  BY  THE  OPERATION  OF  TREATIES. 


207 


,  two 
were 
3,  the 
it  was 
pro- 
cflec- 
fi'oin 
reaty. 
)y  the 
jh  not 
•ce  by 


the  issue  of  the  necessary  order  of  the  queen  in  coun- 
cil. The  Canadian  government  have  acquiesced  in  the 
non-enforcement  of  these  statutes.  But  in  the  event  of  a 
I  8W  and  enlarged  extradition  treaty  not  being  speedily 
entered  into  between  her  Majesty's  government  and 
that  of  the  United  States,  they  reserve  the  right  of 
legislating  upon  the  whole  question  of  extradition  so 
far  as  the  interests  of  the  dominion  are  concerned. 

In  December,  1875,  the  dominion  government  de- 
puted the  minister  of  justice  (Mr.  Blake)  to  confer 
with  her  Majesty's  government  upon  this  subject,  and 
especially  to  consider  the  expediency  of  negotiating  a 
more  comprehensive  extradition  treaty.^ 

About  this  time,  a  misunderstanding  arose  between 
the  British  and  the  United  States  governments  upon  an 
application  to  the  British  government  for  the  surrender 
of  one  E.  D.  Winslow,  a  fugitive  from  justice,  charged  "^vinsiow 
witli  forgery.  The  British  government  declined  to  sur-  tiou  case. 
render  this  man  unless  they  were  assured  that  he  should 
not  be  tried  for  any  off'ence  other  than  that  for  which 
he  should  bo  surrendered.  This  stipulation  was  in 
accordance  with  a  clause  in  the  imperial  act  of  1870. 
But  inasmuch  as  this  condition  appeared  to  be  a  restric- 
tion imposed  by  an  imperial  statute  only,  and  not  en- 
joined either  by  the  treaty  of  1842  or  by  the  American 
statutes  passed  to  give  effect  thereto^  the  Un  ^od  States 
government  refused  to  comply  with  it.  A  prolonged 
correspondence  ensued,  in  which  the  American  govern- 
ment adhered  to  their  construction  of  the  treaty,  while 
the  British  government  contended  that  the  imperial 
act  of  1870  imposed  no  new  condition  upon  the  ob- 
servance of  the  treaty,  but  merely  declared  the  law  that 


]Mr.  Rlake's  letter  to  the  secre-  the  previous  corresponrlence  referred 

tary  of  state  for  the  colonies,  dated  to  in  the  text,  see  ibid.  1876,  no. 

June  27,  1870,  in  Canada  Sess.  Tea-  49. 
pers,  1877,  no.  KJ,  pp.  10-18.    For 


I 


A 


i 


20b       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


Extradi- 
tion trea- 
ties. 


should  regulate  its  administration.  As  neither  party 
would  give  way,  the  operation  of  the  treaty  was  sus- 
pended. The  suspension  continued  for  a  year,  when 
the  British  government  consented  to  waive  the  point 
in  dispute,  and  the  treaty  was  revived ;  hut  with  an 
understanding  that  negotiations  should  be  entered  into 
for  a  more  explicit  treaty  to  regulate  the  extradition  of 
criminals.' 

No  new  extradition  treaty  between  Great  Britain  and 
the  United  States  of  America  has  yet  been  agreed  upon. 
But  all  extradition  treaties  entered  into  by  the  British 
government  with  any  foreign  state  since  1870,  have 
contained  a  clause  expressly  stipulating  that  "  a  person 
surrendered  shall  not  be  tried  for  any  crime  or  offence 
committed  in  the  other  country  before  the  extradition, 
other  than  the  crime  for  which  his  surrender  has  been 
granted."  " 

The  dominion  government  have  urged  upon  her 
Majesty's  government  the  expediency  of  providing,  in 


'  See  r]<^irlv9  on  Extradition,  ed. 
1874,  <;.  4.  Kent,  International 
Law  by  Abdy,  LM  ed.  1878,  p.  117. 
Hans.  Deb.  vol.  ccxxxii.  p.  2.")(). 
The  Ameiican  courts  are  not  unani- 
mous in  supportincj  the  interpreta- 
tion put  upon  the  ti'eaty  by  the 
United  States  government.  In  the 
case  of  the  United  States  v.  Law- 
rence, decided  by  the  United  States 
Circuit  Court,  Southern  District  of 
New  York,  in  187(5,  the  view  held 
by  the  American  p^overnment  is  up- 
held (Cox,  Criminal  I^aw  Cases, 
vol.  xiii.  p.  ■ii')]).  But  this  con- 
struction is  repudiated,  and  the  view 
expressed  by  the  British  Ofovernment 
approved,  by  the  Court  of  Ap]")eals  of 
Kentucky,  in  April,  1878,  in  the  case 
of  the  Commonwealth  ;•.  Ilawes. 
(Law  Times  Rep.  N.  S.  vol.  xxxix. 
p.  80).  See  also  Spear  on  the  Law 
of  P^xtradition  (Albany,  1879),  Part 
1.  of  which  contains  an  able  argu- 
ment in  support  of  the  British  con- 


tention. Canadian  jurists  liave  in- 
clined the  otlier  way.  Thus  .Judge 
Ramsay  decided  in  the  Court  of 
Queen's  Bench  for  INIontreal,  in 
February,  1874,  that  so  nuichof  the 
imperial  extradition  act  of  1870  as 
was  inconsistent  with  the  Ashbur- 
to!i  treaty  of  1842,  was  not  neces- 
sarily to  be  held  as  being  in  force  in 
Canada;  initil,  at  least,  an  order  of 
the  queen  in  council  should  be  i.s- 
sned,  under  the  fifth  section  of  the 
said  act,  applying  the  act  to  a  par- 
ticular foreign  state;  which  order,  it 
seems,  has  not  been  promulgated. 
Lower  Canada  Jurist,  vol.  xviii. 
p.  200.  And  see  Mr.  Blake's  letter 
(cited  in  the  previous  note),  p.  21. 

"  Canadian  Orders  in  Council, 
pp.  381-409.  Treaty  between  Great 
Britain  and  France,  of  Aug.  14, 
^70;  and  other  similar  treaties, 
prefixed  annually  to  the  volumes  of 
the  .statutes  of  Canada. 


'MWij«»£ 


CONTROL  BY  THE  OPERATION  OF  TREATIES. 


209 


any  new  treaty  or  convention  for  the  purpose  of  extra  Extrarii- 
dition,  that  special  arrangements  should  be  made  for  iJ,"canaIia. 
carrying  out  the  same  in  Canada,  by  the  direct  action 
of  the  Canadian  authorities.  And,  in  the  event  of  it 
being  found  impossible  to  conclude  a  new  treaty  with 
the  United  States,  that  the  sanction  of  the  imperial  go- 
vernment should  be  given  to  Canadian  legislation  upon 
the  subject ;  such  legislation  to  be  reciprocal,  if  possi- 
ble, but,  if  that  be  not  attainable,  then  without  recipro- 
city. This  proposal  is  the  more  reasonable,  and  likely 
to  be  finally  carried  out  by  common  consent,  inas- 
much as  the  general  principle  of  local  legislation 
in  reference  to  the  extradition  of  criminal  offenders 
has  been  repeatedly  recognized  and  applied  in  the  case 
of  various  British  colonies.^ 

Meanwhile,  the  Canadian  government  has  not  lost 
sight  of  its  claim  to  deal,  by  legislation  in  Canada,  with 
the  general  question  of  extradition. 

On  April  10, 1877,  the  dominion  House  of  Commons 
agreed  to  a  series  of  resolutions,  upon  which  a  joint 
address  to  tlie  queen  was  adopted,  by  both  branches  of 
the  Canadian  parliament,  representing  that,  inasmuch 
as  they  possessed  all  the  powers  necessary  for  tne  pur- 
pose, they  had  passed  a  bill  —  which  was  afterwards 
assented  to  by  the  governor-general  —  to  make  provi- 
sion by  one  Canadian  law  for  the  execution,  as  respects 
Canada,  of  all  arrangements  made  between  her  Majesty 
the  queen  and  foreign  states  for  the  extradition  of  fu- 
gitive criminals ;  that,  by  the  eighteenth  section  of  the 
imperial  act  of  1870,  above  mentioned,  it  is  enacted 
that  by  order  in  council  the  provisions  of  any  colonial 
law  to  provide  within  the  colony  for  the  surrender  of 
fugitive  criminals  may  be  substituted  for  the  clauses  of 
the  imperial  act  to  the  same  effect ;  that  the  provisions 


,!■! 


», 


^  Mr.  Blake's  letter  (above  cited)  of  June  27,  1876,  pp.  17,  18. 

14 


210       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


.'      i 


Commis- 
sion on 
law  of  cx- 
truditiun. 


of  the  said  imperial  act  are  unsuitable  for  Canada ;  that 
the  Imperial  Parliament  be  invited  to  repeal  these  pro- 
visions ;  and  that  meanwhile  her  Majesty,  by  order  in 
council,  should  suspend  their  operation,  in  order  that 
the  Canadian  statute  of  1877  (40  Vict.  c.  25)  may  have 
force  and  effect,  in  lieu  of  the  same.''' 

In  reply  to  this  joint  address,  the  g-overnor-g-eneral 
was  informed,  by  despatch  from  the  colonial  secretary, 
dated  Feb.  5,  1878,  that  the  imperial  government  were 
not  willing  at  present  to  suspend  in  Canada  the  opera- 
tion of  the  extradition  act  of  1870,  inasmuch  as  the 
question  of  the  extradition  relations  of  the  empire  with 
foreign  powers  was  under  consideration  by  a  royal 
commission." 

On  May  30,  following,  the  royal  commission  ap- 
pointed to  inquire  into  and  consider  the  working  and 
effect  of  the  existino;  law  and  treaties  relatino;  to  the 
extradition  of  persons  accused  of  crime  presented  their 
report.  They  recommended  that  treaties  for  the  sur- 
render of  criminal  offenders  to  foreign  powers  should 
no  longer  be  regarded  as  indispensable  ;  but  that,  while 
the  Crown  should  still  retain  tho  right  to  enter  into 
such  treaties,  statutory  power  should  be  granted  to  the 
proper  authorities  to  deliver  up  fugitive  criminals,  upon 
application,  wherever  such  an  arrangement  could  be 
made  in  a  suitable  manner,  irrespective  of  the  subsist- 
ence of  any  treaty  between  Great  Britain  and  the  state 
against  whose  law  the  offence  had  been  committed. 
Imperial  legislation  will,  of  course,  be  necessary  to 
effect  this  change.  Meanwhile,  the  commissioners  re- 
frain from  recommending  any  alteration  in  the  existing 
law  on  this  subject,  —  at  least,  as  regards  the  colo- 
nies.^ 


^  Canada  Com.  Journals,  1877, 
p.  2:58. 

"  Ibid.  1878,  p.  45. 


y  Commons    Papers,   1878,    C. 
2039. 


IKS. 


CONTROL  BY  THE  OPERATION  OF  TREATIES. 


211 


a; 


,  that 
}se  pro- 
rder  in 
er  that 
ay  have 

■ireneral 
crctary, 
nt  were 
3  opera- 
i  as  the 
lire  with 
a  royal 

=!ion  ap- 
:ins:  and 
IT  to  the 
ted  their 
tlie  sur- 
Is  should 
at,  while 
ter  into 
d  to  the 
Is,  vipon 
ould  be 
subsist- 
he  state 
mitted. 
|ssary  to 
ners  re- 
[existing 
lie   colo- 


Il878,    C. 


■   Accordingly,  the  Canadian  act  of  1877  remains  in  imporidi 
abeyance,    lor   the    present;    and    all    extraditions   in  tradilion" 
Canada,  other  than  those  which  are  carried  out  under 
the  Ashburton  treaty,  must  be  conducted  pursuant  to 
the  provisions  of  tlie  imperial  statutes.'' 

All  new  extradition  treaties  negotiated  between  the  iiow  ap- 
British  government  and  foreign  powers  are  invariably  (ia^'coio- 
made  "  applicable  to  the  colonies  and  foreign  possessions  "'^'*- 
of  the  two  high  contracting  parties."  The  requisition 
for  the  surrender  of  a  fugitive  criminal,  who  has  taken 
lefuge  in  a  colony,  is  addressed  to  the  governor,  or 
chief  executive  officer  thereof,  through  the  chief  con- 
sular officer  of  the  power  applying  for  the  criminal. 
The  governor  disposes  of  the  requisition  in  accordance 
with  the  provisions  of  the  treaty.  But  he  may  either 
grant  the  surrender  or  refer  the  matter  to  the  imperial 
authorities.  The  British  government  usually  reserves 
to  itself  the  right  to  make  special  arrangements  for  the 
surrender  of  criminals  from  the  colonies,  —  conducting 
the  same,  as  nearly  as  possible,  in  conformity  with  ex- 
isting treaties." 

Here,  mention  may  appropriately  be  made  of  a  case  Lami- 
arising   out   of  an   extradition  treaty  between  Great  eas? 
Britain  and  France,  which  gave  rise  to  much  corre- 
spondence, and  led  to  a  rebuke  being  administered  by 
the  secretary  of  state  for  the  colonies  to  the  governor- 
general  of  Canada,  for  his  action  in  the  matter :  — 

In  August,  1866,  one  Lamirande  was  appr^^hended  in 
Canada,  on  a  charge  of  forgery  committed  in  France,  under 
a  warrant  issued  by  the  governor-general,  on  the  requisition 


'  C.  J.  Dorion,  Court  of  Queen's 
Bench,  Quebec:  L.  C.  Jurist,  vol. 
xxii.  p.  111.  C.  J.  Harrison,  Onta- 
rio Practice  Rep.  vol.  vii.  p.  275. 
And  see  JMr.  lilake's  letter,  above 
cited,  of  June  '27,  187G,  p.  1(5. 

"  For  various  extradition  trea- 
ties, with  the  orders  in  council  to 


give  eifect  thereto,  see  Canada  Or- 
ders in  Council,  pp.  381-409.  For 
later  ones,  see  the  prefix  to  Canada 
Statutes  of  1877,  1878,  and  1879. 
For  a  list  of  all  such  treaties  in 
force  up  to  November,  1878,  see 
Colonial  Regulations,  1879,  p.  309. 


1} 


!! 


^^1 


ill 


vM 


212       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


fi  '  ' 


■  h 


of  the  French  consul-general.  Laniirande  was  committed  to 
gaol,  with  a  view  to  his  surrender,  as  a  fugitive  criminal, 
under  the  extradition  treaty.  But  he  applied  for  a  writ  of 
habeas  corpus,  in  order  that  the  validity  of  the  proceedings 
against  him  might  bo  determined  by  the  Court  of  Queen's 
Bench,  at  Montreal.  While  his  case  was  still  under  con- 
sideration by  the  court,  the  governor-general,  acting  on  the 
advice  of  the  solicitor-general  for  Lower  Canada,  signed  the 
warrant  of  extradition,  which  was  promptly  carried  out ;  and 
Lamirande  was  delivered  up  to  the  agent  of  the  French  go- 
vernment. This  appears  to  have  been  done  in  ignorance  of 
the  fact  that  the  court  was  actually  deliberating  on  the  pri- 
soner's case,  and  moreover  with  an  idea  that  his  legal  rights 
would  not  be  prejudiced  by  the  issue  of  a  warrant  for  his 
extradition.  But,  owing  to  some  delay  in  the  proceedings 
before  the  court,  no  order  was  made  for  the  issue  of  the  writ 
of  habeas  corpus,  until  the  day  after  Lamirande's  surrender. 

Nevertheless,  the  court  continued  to  deliberate  on  the  case, 
and  decided  that  "  the  pretended  warrant  of  arrest,  al- 
leged to  have  been  issued  in  France,  and  all  the  proceedings 
taken  with  a  view  to  obtain  the  extradition  of  the  petitioner, 
were  unauthorized  "  by  the  imperial  statute  passed  to  give 
effect  to  the  extradition  treaty  with  France,  and  were  "  ille- 
gal, null  and  void,  and  that  the  prisoner  was  therefore  enti- 
tled to  his  discharge."  But,  as  the  judge  went  on  to  state, 
the  prisoner  "  is  now  probably  on  the  high  seas,  swept  away  by 
one  of  the  most  audacious  and  successful  attempts  to  frustrate 
the  ends  of  justice  which  has  yet  been  heard  of  in  Canada." 

The  governor-general  (Lord  Monck),  in  a  series  of  de- 
spatches in  answer  to  tlie  request  of  the  imperial  govern- 
ment, gave  full  explanations  of  the  proceedings  taken  in  this 
case,  and  assumed  direct  responsibility  for  the  miscarriage  of 
justice  which  had  occurred.  At  the  same  time,  he  pointed 
out  that  the  blame  for  what  had  happened  ought  to  rest  with 
those  who,  having  charge  of  the  prisoner's  interests,  had 
neglected  to  act  with  sufficient  promptitude  on  his  behalf. 

In  reply  to  these  despatches,  the  colonial  secretary,  in  a 
despatch  dated  Nov.  24,  1866,  while  giving  th-^  governor- 
general  credit  for  the  best  intentions,  rebuked  him  for  his  pre- 
cipitancy in  the  matter,  and  for  his  neglecting  to  ascertain 
whether  the  prisoner  was  under  the  protection  of  the  queen's 


I  ! 


;es. 


CONTROL  BY  THE  OPERATION  OF  TREATIES. 


213 


i      ( 


tted  to 
iininal, 
writ  of 
Reelings 
Queen's 
)!■   con- 
on  the 
led  the 
it ;  and 
leh  go- 
ance  of 
.he  pri- 
1  rights 
for  liis 
eedings 
,he  writ 
jnder. 
he  case, 
est,   fil- 
leedings 
titioner, 
to  give 
•6  '"  ille- 
re  enti- 

0  state, 

1  way  by 
rustrate 
lada." 

of  de- 
govern- 

in  this 
riage  of 
pointed 
est  with 
its,  had 
half, 
ry,  in  a 
Dvernor- 

his  pre- 
scertain 

queen's 


loll 


:- 


^ 


bench,  before  authorizing  liis  surrender  to  the  Frencli  authori-  Ln?»i- 

ties.     "  Tiie  omission  to  take  this  precaution  has  led  to  a  most  r»'>''>' '" 
<•  1  1.  1       •       M  »  ,  111  tnnlitiDi 

unfortunate  abuse  oi  your  authority.  "  A  great  scandal  has  case 
taken  place,  and  an  insult  has  been  passed  upon  the  digiiity 
of  the  law,  and  the  regular  administration  of  justice  in  the 
Canadian  courts."  '*  I  am  obliged,  therefore,  with  whatever 
reluctance,  to  express  my  decided  disapproval  of  the  course 
which  j'our  Lordship  was  induced  to  adopt." 

With  the  conduct  of  the  Canadian  officers  who  had  taken 
part  in  this  transaction,  the  colonial  secretary  was  not  con- 
cerned to  deal.  They  "are  responsible  to  their  superiors,  and 
their  superiors  to  the  parliament,  the  constituencies,  and  the 
public  opinion  of  Canada."  But  "the  explanations  hitherto 
afforded  by  your  solicitor-general  of  his  conduct  in  obtaining 
the  warrant,  whilst  the  case  was  actually  under  the  hearing 
of  the  judge,  would  not  have  been  deemed  satisfactory  by  her 
Majesty's  government." 

Subsequently,  the  British  government  made  an  official  re- 
quest to  the  French  authorities  for  the  surrender  of  Lamirande, 
on  the  ground  that  his  extradition  was  unauthorized  by  the 
treaty  of  1843,  and  the  British  statute  confirming  the  same, 
inasmuch  as  the  demand  for  his  extradition  had  been  irre^u- 
larly  preferred,  and  that  the  offence  charged  against  him  was 
not  a  crime  contemplated  by  the  treaty.  The  French  go- 
vernment, however,  demurred  to  these  conclusions.  At  this 
juncture,  Lamirande  himself  made  known  to  the  imperial 
government  his  desire  to  renounce  all  claim  to  be  surrendered, 
and  stated  that  he  wished  to  remain  in  France  to  undergo 
the  punishment  awarded  to  him.  As  he  had  previously  in- 
vited the  interference  of  her  Majesty's  government  on  his 
behalf,  this  later  request  was  duly  communicated  to  the  sec- 
retary of  state  for  foreign  affairs.  Whereupon  the  British 
ambassador  at  Paris  was  instructed  to  state  that  her  Majes- 
ty's government  no  longer  insisted  on  their  application  for 
Lamirande's  release ;  although  "  their  abstaining  from  doing 
so  must  not  be  construed  into  an  admission  on  their  part 
that  there  were  not  sufficient  grounds  for  insisting  upon 
it."  ^ 

And  thus  this  vexatious  case  was  brought  to  an  amicable 


'.J 


1    I 

< 

I 


t   : 


i 


!l 


t   I 
\   11 


1 


''  Canada  Sess.  Papers,  1867-68,  no.  50. 


■  1 


'i 
■ 


1 


Wh 


, 


Naturali- 
zation of 
aliens. 


Naturali- 
zation 
laws. 


214     PARLIAMENT AliY  GOVERNMENT  IN  THE  COLONIES. 

conclusion,  after  exciting  strong  feeling  in  Canada,  and  en- 
dangering the  good  understanding  ])etween  the  governments 
of  Great  Britain  and  of  France  ;  perilous  consequences  whicli 
might  have  been  avoided,  if  the  Canadian  government  had 
manifested  a  proper  discretion,  and  a  due  regard  for  private 
rights. 

The  naturalization  of  aliens,  and  their  relase  from  the 
obligations  they  inherit  as  natural-born  subjects  in  the 
country  of  their  birth,  is  another  matter  which  is  pro- 
perly effected  by  means  of  treaties  between  sovereign 
states.  This  subject  has  repeatedly  attracted  attention 
in  the  British  colonies,  and  has  given  rise  to  much  cor- 
respondence between  the  imperial  and  colonial  govern- 
ments. 

By  the  Imperial  Act  7  and  8  Vict.  c.  66,  passed  in 
1844,  the  secretary  of  state  was  empowered  to  grant 
certificates  of  naturalization  to  aliens,  which  conferred 
upon  them  all  the  rights  and  capacities  of  British  sub- 
jects, except  in  regard  to  certain  political  privileges. 
But  this  act  was  limited  in  its  operation  to  the  United 
Kingdom. 

Accordingly,  it  became  customary  for  naturalization 
laws  to  be  passed  by  the  local  legislatures,  on  behalf  of 
aliens  resident  in  the  colonies ;  and,  by  the  Imperial  Act 
10  and  11  Vict.  c.  83,  passed  in  1847,  it  was  declared 
that  all  statutes  heretofore  passed  by  any  colonial  legis- 
lature in  the  queen's  dominions,  for  naturalizing  per- 
sons within  the  respective  limits  of  such  colonies,  shall 
be  valid  and  eficctual  therein,  and  likewise  all  future 
acts  to  the  same  purport,  subject  to  confirmation  or 
disallowance  by  her  Majesty.  But,  whenever  aliens, 
so  naturalized  by  colonial  laws,  pass  beyond  the  limits 
of  the  particular  colony,  thoy  lose  all  claim  to  be  con- 
sidered as  British  subjects. '^ 

"  Soe  Earl  droy's   Dospakh   of     10  and  11  Vict.  c.  83,  was  repealed 

Sopt.  L'.'),  1817;  Caiiadii  Lej;.  Assimu.     ami  rc-ciiacted  hy  Act  o^  Vict.  o.  11. 

•Joiiinals,    1848,   p.    42.     Tho  Act     Wlicu  i\  Utituraiizatiou  bill   is  pro- 


lES. 


CONTROL  BY  THE  OPERATION  OF  TREATIES. 


215 


and  en- 

ernments 
es  wliieh 
lent  liad 
r  private 

Tom  the 
s  m  the 
is  pi*o- 
>ve  reign 
ttention 
iieh  cor- 


govern- 


issed  in 

0  gmnt 
)nferred 
ish  sub- 
ivileges. 

United 

ilization 
ehalf  of 

1  rial  Act 
lechired 
i\\  legis- 
ng  per- 
Bs,  shall 
[  future 
ition  or 

aliens, 
B  limits 
be  con- 


'  repealed 
'ict.  0.  U. 
ill  is  pio- 


In  1865,  the  imperial  government  enlarged  the  privi- 
leges of  foreigners  naturalized  in  any  British  colony,  by 
enabling  them  —  under  certain  restrictions,  and  for  a 
limited  period  —  to  obtain  passports,  signed  by  the  go- 
vernor, as  "  naturalized  British  subjects,"  which  would 
afford  to  them  protection  for  a  certain  specified  time 
when  travelling  abroad.  Such  passports,  however, 
confer  on  the  bearer  no  claim  to  British  protection  in 
the  country  of  their  birth.'^ 

In  1870,  an  amended  naturalization  act  was  passed 
by  the  Imperial  Parliament,  which  entitled  aliens  who 
had  received  certificates  of  naturalization  from  the  sec- 
retary of  state  (to  be  granted  under  certain  specified 
conditions)  to  claim  all  political  and  other  rights  of 
British  subjects,  excepting  that,  when  in  the  country 
of  his  birth,  an  alien  should  be  liable  to  his  original 
allegiance  therein,  "  unless  he  has  ceased  to  be  a  sub- 
ject of  that  state  in  pursuance  of  the  laws  thereof,  or 
of  a  treaty  to  that  effect."  And  this  act  empowers 
naturalized  aliens  to  divest  themselves  of  their  original 
status,  —  and  British  subjects  to  renounce  their  alle- 
giance to  the  British  Crown,  with  a  view  to  being 
naturalized  in  a  foreign  state,  —  in  any  case  where  her 
Majesty  has  entered  into  a  convention  with  a  foreign 
state,  for  the  purpose  of  giving  effect  to  such  a  renun- 
ciation of  allegiance.  But  this  act  does  not  extend  to 
the  colonies.'' 

The  continued  inconveniences  and  disabilities  to 
which  German  emigrants  to  Canada  are  exposed  by 
reason  of  the  partial  benefits  afforded  to  them  by  na- 
turalization under  the  colonial  law,  which  leaves  them 


posed  in  any  colony,  the  governor  grantod  to  the  limits  of  the  colony, 

should  ascertain  whothcr  his  instruc-  Col.  Rules  &  lleg.  1879,  c.  14. 
tioiis  do  or  do  not  retjuire  the  inser-  '^  Ibid.      And  see  Canada   Sess. 

tiou  tlierein  of  a  suspending  clause.  Papers,  1867-68,  no  74. 
He  should  also  take  care  that  words  *  '•)'■)  Vict.  c.   14;  Canada  Orders 

are   nisertel   in    the   terms   of   the  in  Council,  1876,  p.  Ixxii. 
statute,    confining-     the     privileges 


Gorman 
einit^raiUs 
to  ( ;u- 
uudu. 


li 


■j 


'      1 

HI 


^:i 


216    PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

still  liable  to  be  claimed  as  German  subjects  when 
travelling  abroad  or  on  a  return  to  their  native  country, 
induced  the  Canadian  privy  council  to  request  the 
governor-general  to  write  to  the  secretary  of  state  for 
the  colonies  and  represent  this  grievance.  Accord- 
ingly, the  Earl  of  Duiferin,  on  Nov.  16,  1872,  ad- 
dressed a  despatch  to  the  Earl  of  Kimberley  on  the 
subject,  and  requested  that  her  Majesty's  government 
would  take  measures  to  obtain  for  aliens  naturalized 
in  Canada  precisely  the  same  rights  as  those  which  are 
conferred  by  naturalization  in  the  United  Kingdom. 
The  receipt  of  this  despatch  was  acknowledged  ;  but  no 
action  was  taken  thereon  by  the  British  government.^ 

Accordingly,  on  April  21,  1873,  the  Canadian  House 
of  Commons  passed  an  address  to  the  queen,  praying 
that,  pursuant  to  the  provisions  of  the  imperial  natu- 
ralization act  of  1870,  above  mentioned,  her  Majesty 
would  be  pleased  to  negotiate  naturalization  treaties 
with  the  German  and  other  foreign  states,  under  which 
legally  naturalized  foreigners  in  Canada  may  no  longer 
be  subjected  to  the  disabilities  of  a  divided  allegiance, 
but,  on  formally  renouncing  their  native  allegiance,  may 
become  entitled  to  all  the  privileges  of  native-born 
British  subjects. 

A  despatch  in  reply  to  this  address,  dated  Septem.- 
ber  3,  1873,  was  transmitted  by  the  governor-general 
to  the  House  of  Commons,  on  May  6,  1874.  It  enclosed 
a  memorandum  from  her  Majesty's  secretary  of  state 
for  foreign  affairs,  which  stated  that  the  imperial  go- 
vernment were  prepared  to  place  aliens  naturalized  in 
any  British  colony,  out  of  Europe,  on  the  same  footing, 
so  far  as  passports  and  protection  in  foreign  countries 
are  concerned,  as  aliens  naturalized  in  England  under 
the  act  of  1870.     Put  it  suggested  that  a  compliance 


^  Canada  Sess.  Papers,  1873,  no.  GG. 


I '''I 


may 
>born 


lance 


CONTROL  BY  THE  OPERATION  OF  TREATIES. 


217 


with  the  request  for  the  negotiation  of  naturalization 
treaties  would  prove  less  advantageous  to  aliens  natu- 
ralized in  the  colonies  than  the  existing  practice, —  , 
inasmuch  as  no  such  treaties  could  be  negotiated,  ex- 
cept upon  the  basis  of  a  five  years'  residence  in  the 
colony  of  the  alien  who  desired  to  be  allowed  to  change 
his  allegiance.  The  only  way  in  which  the  objections 
urged  could  be  satisfactorily  overcome  would  be  by  an 
extension  of  imperial  naturalization  to  the  colonies,  the 
expediency  of  which  is  under  the  consideration  of  her 
Majesty's  government.^ 

No  further  imperial  legislation  having  taken  place 
regarding  naturalization,  in  the  mean  while  the  Cana- 
dian House  of  Commons,  on  April  5,  1875,  again  ad- 
dressed her  Majesty  on  the  subject,  representing  that 
the  extension  of  the  naturalization  act  of  1870  to  the 
colonies  would  not  meet  the  just  expectations  of  the 
Germans  and  other  naturalized  foreigners  in  Canada, 
inasmuch  as  the  passports  granted  under  that  act, 
though  permanent,  are  expressly  declared  to  be  in- 
valid in  the  state  in  which  the  Individ ufds  concerned 
were  formerly  subjects,  the  place  of  all  others  in  which 
they  desire  to  be  protected  in  their  acquired  rights  Naturaii- 
and  privileges.  The  house,  therefore,  reiterated  their  (fJJIISilJg 
request,  that  her  Majesty  would  be  pleased  to  enter  i"Caaa- 
into  a  treaty  with  the  German  states  (such  as  has 
been  already  negotiated  between  Great  Britain  and 
the  United  States ;  and  between  the  United  States  of 
America  and  Germany) ;  so  that  her  Majesty's  natu- 
ralized German  subjects  in  Canada,  after  a  residence 
therein  of  from  three  to  five  years  (as  may  be  agreed 
upon  by  the  contracting  powers)  may  become  entitled 
to  all  the  rights,  privileges,  and  immunities  of  British 
subjects,  in  any  part  of  the  world,  and  in  as  full  a 
measure  as  if  they  were  native-born  British  subjects. 

«  Canada  Sess.  Papers,  1874,  no.  54. 


j)t 


1 


I 


"E   I  i 


218     PAKLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


(  'W 


,11 


Rii?ht  of 
aliens  to 
liold  pro- 
perty in 
Canada. 


In  a  despatch  dated  Aug.  4,  1875,  the  colonial  secre- 
tary acknowledged  the  receipt  of  the  foregoing  ad- 
dress; but  intimated  that  her  Majesty's  government 
were  unable,  at  present,  to  make  any  progress  towards 
a  compliance  therewith,  but  would  resume  the  conside- 
ration of  the  whole  question  hereafter.^' 

No  communication  has  since  been  made  to  the  Cana- 
dian Parliament  on  this  subject.  But  in  March,  1879, 
the  attention  of  the  governor-general  was  directed  to 
the  matter,  by  a  deputation  of  senators  and  members 
specially  interested  in  the  removal  of  the  disabilities 
which  continue  to  devolve  upon  German  emigrants  in 
Canada,  and  his  Excellency  promised  to  bring  the  ques- 
tion under  the  notice  of  her  Majesty's  ministers. 

While  by  the  ninety-first  section  of  the  British  North 
America  act,  1867,  the  dominion  parliament  is  exclu- 
sively empowered  to  legislate  upon  "  naturalization  and 
aliens,"  it  has  been  assumed  that,  by  the  ninety-second 
section  of  this  act,  —  which  empowers  provincial  legis- 
latures to  exclusively  make  laws  concerning  "  property 
and  civil  rights  in  the  province,"  —  these  legislatures  are 
competent  to  authorize  aliens  to  hold  and  transmit  real 
estate.' 

Mention  has  already  been  made  (ante,  page  154)  of 
the  serious  questions  which  have  arisen  in  various  Bri- 
tish colonies,  from  the  large  and  indiscriminate  influx 
therein  of  Chinese,  under  the  treaty  with  China. 


i  I' 


Imperial  Dominion  exercisable  over  Self-governing  Colonies : 
f .  Bg  appeals  to  the  courts  of  law  and  to  the  privy  council. 

Legislation  by  the  Imperial  Parliament,  as  has  been 
already  pointed  out,  is  not  subject  to  be  reviewed  and 


^  Canada     Commons     Journals,  The  dominion  naturalization   tocts, 

1876,  p.  0;J.  uliicli   apply   to   all   tlio  ))rovinL'ert, 

'  Rev.  Stats.  Ontario,  c.  97.  IMa-  contain  no  provisions  of  this  iiatura. 
nitoba  Stats.  1873  (37  Vict.  c.  43). 


lES. 


CONTROL  BY  APPEALS  TO  COURTS  OF  LAW,  ETC.    219 


l1  secre- 
ing  ad- 
ornment 
towards 
3onside- 


le  Cana- 
1,  1879, 
icted  to 
lenibers 
abilities 
rants  in 
le  qiies- 

li  North 
exclu- 
ion  and 
-second 
il  legis- 
roperty 
ires  are 
nit  real 

54)  of 
us  Bri- 
influx 


lonies : 
uneil. 

IS  been 
ed  and 

ion  octs, 
irovinoos, 
8  nalure. 


annulled  by  any  court  of  law  within  the  realm.  Par- 
liament itself,  in  its  collective  cajjacity,  is  the  highest 
court  in  the  kingdom,  and  is  neces^sarily  the  supreme 
judge  of  the  proper  limits  of  its  own  jurisdiction  and 
powers ;  and  it  is  not  either  constitutional  or  lawful  for 
an  inferior  court  to  question  the  propriety  or  the  dis- 
cretion of  any  act  done  or  passed  by  the  Imperial  Par- 
liament.J 

Within  the  limits  of  every  colony  or  province  having 
representative  institutions,  the  local  legislature  is  in- 
vested with  a  similar  supreme  authority  and  jurisdic- 
tion : ''  subject  of  course  to  the  discretion  of  the  Crown 
in  assenting  to  or  disallowing  colonial  enactments; 
and  subject,  moreover,  to  the  determination  of  the 
question,  whether  the  legislature  has  exceeded  its 
competency,  and  the  lawful  bounds  of  its  prescribed 
powers,  on  any  given  occasion. 

It  is  the  general  condition  of  all  legislation  by  subor- 
dinate and  provincial  assemblies,  throughout  the  Bri- 
tish Empire,  that  the  same  "  shall  not  be  repugnant  to 
the  law  of  England."^  This  condition  is  enforced  in 
two  ways :  firstly,  as  has  been  elsewhere  shown,  by 
the  right  and  duty  of  the  Crown  to  disallow  any  act 
that  contravenes  this  principle ; '"  secondly,  by  the 
decision  of  the  local  judiciary  in  the  colony,  in  the 
first  instance,  and  ultimately  of  her  Majesty's  impe- 
rial privy  council,  upon  an  action  or  suit  at  law,  duly 
brought  before  such  a  tribunal,  to  declare  and  ad- 
judge a  colonial,  dominion,  or  provincial  statute,  either 
in  whole  or  in  part,  to  be  iiltra  vires  and  void,  as  being 
in  excess  of  the  jurisdiction  conferred  upon  the  legis- 
lature by  which  the  same  was  enacted,  or  at  variance 
with  some  imperial  law  in  force  in  the  colony ;  or 
otherwise,  by  a  similar  decision,  to  confirm  and  approve 


Plenary 
powors  of 
local  logis- 
laturcs. 


Their  le- 
gislation 
not  to  be 
repugnant 
to  Eng- 
lish law. 


J  See  nntp.,  p.  101. 
^  See  post,  p.  3U8. 


•  See  anlr,  p.  \'\^. 
"  See  ante,  p.  138. 


I 


«  r 


iMi  I 


220       PARLIAMENTARY  GOVERNxMENT  IN  THE  COLONIES. 


r: 


W-J 


( 


Interpre- 
tation of 
colonial 
statutes 
by  the 
cuurta. 


Appeals 
to  the 
Crown  in 
council. 


of  the  legality  of  the  act  the  validity  of  which  had 
been  impugned." 

The  power  of  interpreting  colonial  statutes,  and  of 
deciding  upon  their  constitutional  effect  and  validity, 
is  a  common  and  inherent  right,  appertaining  to  all  her 
Majesty's  courts  of  law  before  which  a  question  arising 
out  of  the  same  could  be  properly  submitted  for  adju- 
dication." 

We  have  elsewhere  discussed  this  subject,  at  consi- 
derable length,  in  connection  with  legislation  in  the 
several  provinces  of  the  dominion  of  Canada,  as  well 
as  in  respect  to  legislation  by  the  dominion  parlia- 
ment:^ it  is  unnecessary  therefore  to  enlarge  upon 
the  question  any  further  in  this  section ;  and  we  may 
proceed  to  show  the  extent  and  method  of  control 
which  is  still  exercised  by  the  Crown  over  all  the 
colonies  and  dependencies  of  the  empire,  through  the 
instrumentality  of  the  privy  council. 

Tlie  sovereign  as  the  fountain  of  justice,  is  consti- 
tutionally competent  to  receive  petitions  and  appeals 
from  all  her  colonies  and  possessions  abroad,  upon 
whatever  regulations  and  conditions  may  be  defined 
and  imposed  by  thj  authority  of  the  Crow^n  in  council. 

Such  petitions  or  appeals  are  referred  to  the  consi- 
deration either  of  the  judicial  committee  of  the  privy 
council,  or  of  some  other  committee  of  that  body,  upon 
whose  report  the  decision  of  the  sovereign  is  pro- 
nounced. The  reference  may  be  made  either  upon  an 
appeal  from  an  inferior  colonial  court,  or  on  a  petition 
or  claim  of  right,  or  on  a  petition   praying  for  the 


n  Mr.  Secretary  Cardwell,  Hans.  1867,  p.  287.     La  Ilevue  Critique, 

Deb.   vol.   clxxxv.    p.    1;520.     And  &c.,  dii  Canada,  Janvier,   1871,  p. 

see  the  judgini'nt  of  tlie  privy  coun-  117;    ibid.    Janvier,    18712,    p.    51; 

oil  in  the  Queen  v.   Burali,  8  App.  ibid.    Avril,  1872  and  Avril,   1873. 

Cas.  88!).     For  otlier  precedents  of  Commons  Papers,  1847-48,  vol.  43, 

eucli  judicial  decisions,  see  poiit,  p.  pp.  024-071.    Ibid.  ^849,  vol.  xxxv. 


SI. 

370 


"  See  Law  Magazine  for  August 


p.  ov. 

V  See  post,  pp.  375-387. 


•NIES. 

lich  had 

,  and  of 
validity, 
3  all  her 
I  arising; 
or  adju- 

it  consi- 

in  the 

as  well 

parlia- 

e    upon 

rve  may 

control 

all   the 

Ligh  the 

consti- 
appeals 
upon 
defined 
ouncil. 

consi- 
3  privy 

,  upon 
IS  pro- 
pon  an 
etition 
br  the 


Critique, 
1871,  p. 
p.  51; 
1,  1873. 
,  vol.  4li, 

)1.  XXXV. 


CONTROL  BY  APPEALS  TO  COURTS  OF  LAW,  ETC. 


221 


redress  of  a  grievance  that  is  not  within  the  pre- 
scribed jurisdiction  of  other  courts  or  departments 
of  state,  but  which  the  Crown  is  willing  to  enter- 
tain/* 

If  the  matter  of  grievance  or  complaint  be  one  that  Judicial 
is  properly  cognizable  by  a  legal  tribunal,  it  would  be  oTtllT^ 
referred  to  the  judicial  committee  of  the  privy  council,  J!y[,Ycii 
which,  by  the  Act  3  and  4  Will.  IV.  c.  41,  in  addition 
to  its  ordinary  functions  as  a  court  of  appeal  from 
inferior  courts  of  law,  is  empowered  (by  sec.  4)  to 
consider  "  any  matters  whatsoever "  that  the  Crown 
shall  think  fit  to  refer  to  it."^  It  has,  however,  been 
decided  that  this  clause  will  not  justify  a  reference  to 
the  judicial  committee  of  anything  whatever  that  could 
not  be  properly  entertained  by,  or  come  before,  the 
Crown  in  council.  For  example,  this  committee  could 
not  advise  upon  questions  of  general  or  political  policy, 
for  that  is  the  especial  province  of  the  cabinet  council ; 
neither  could  it  advise  in  criminal  matters,  in  which, 
except  in  certain  colonial  cases,  no  appeal  to  the  privy 
council  is  allowed  by  law.** 

With  a  view  to  increase  the  efficiency  of  the  judicial 
committee,  it  is  customary  to  summon  to  the  privy  coun- 
cil judges,  and  men  of  eminence  in  every  branch  of 
legal  study,  expressly  that  they  may  assist  at  the  de- 
liberations of  the  same.*^  And  in  1871  by  the  Act  34 
and  35  Vict.  c.  91,  four  additional  paid  judges  were 


^  Stephen,  New  Commentaries, 
ed.  1871,  vol.  ii.  p.  401;  Hegina  i'. 
Bertraiul,  V.  C.  Appeals,  vol.  i.  p. 
520,  And  see  Canada  Assem.  Jour. 
1861.  p.  170. 

'  Tr  d.  Pari.  (lovt.  vol.  ii.  p.  091. 
Finlason,  History,  Constitution, 
and  Character  of  tlie  Judicial  Com- 
mittee of  the  Privy  Council.  Lon- 
don, 1878. 

'  Hans.  Deb.  vol.  209,  pp.  977, 
OBI.     But  tlie  Crown  may,  by   its 


prerogative,  review  the  decisions  of 
all  colonial  courts,  criminal  as  well 
civil,  -inless  this  prerogative  ha? 
been  expressly  annulled  by  charter 
or  statute,  tiiough  an  appeal,  in  a 
criminal  case,  is  rarely  entertained 
by  the  privy  council.  Forsyth, 
Const.  Law,  p.  ;}79.  Macpherson, 
P.  C.  Practice,  ed.  1873,  p.  GO. 

'  Todd.    Pari.   Govt.   vol.  ii.  p. 
025. 


] 

ii 

pil 

''1 

im 

i  '     ii 

'  !'■'■■ 

<  '  1    I  ' 

t     I's'i 

t 

f'i 

( 

Li 


I 


!       1^ 


222       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


'I  ;i 


•^ 


Bonoficial 
effects  of 
inii)eriiil 
npjielliUe 
jurisdic- 
tion. 


added  to  the  judicial  committee  for  the  like  purpose. 
By  the  Supreme  Court  of  Judicature  Act,  1873,  sect.  21, 
her  Majesty  in  council  was  empowered  to  transfer 
the  jurisdiction  of  the  judicial  committee  to  the  new 
Court  of  Appeals  created  by  that  statute.  But  by  the 
amending  act  of  1875,  the  operation  of  this  section  was 
suspended ;  and,  by  the  twenty-fourth  section  of  the 
appellate  jurisdiction  act  of  1876,  it  was  repealed,  and 
new  provisions  enacted  to  maintain  the  existence  of 
the  judicial  committee  of  the  privy  council,  and  to 
strengthen  the  point  of  connection  between  that  body 
and  the  House  of  Lords,  as  the  ultimate  courts  of 
appeal  for  the  British  Empire." 

The  appellate  jurisdiction  of  the  queen  in  council  is 
retained  for  the  benefit  of  the  colonies,  not  for  that  of 
the  mother  country.  It  secures  to  every  British  sub- 
ject a  right  to  claim  redress  of  grievances  from  the 
Throne.  It  provides  a  remedy  in  certain  cases  not 
falling  within  the  jurisdiction  of  ordinary  courts  of  jus- 
tice; it  removes  causes  from  the  influence  of  local  pre- 
possessions ;  it  affords  the  means  of  maintaining  the 
uniformity  of  the  law  of  England  in  those  colonies 
which  derive  the  great  body  of  their  law  from  Great 
Britain  ;  and  it  enables  suitors,  if  they  think  fit,  to 
obtain  a  decision  in  the  last  resort  from  the  highest 
judicial  authority  and  legal  capacity  existing  in  the 
metropolis.  It  is  true  that  in  a  colony  which  possesses 
an  efficient  court  of  appeal,  it  may  be  seldom  necessary 
to  have  recourse  to  this  supreme  tribunal.  Neverthe- 
less its  controlling  power,  though  dormant  and  rarely 
invoked,  is  felt  by  every  judge  in  the  empire,  because 
he  knows  that  his  decisions  are  liable  to  be  submitted 
to  it.  Under  such  circumstances,  it  is  not  surprising 
that  British  colonists  have  uniformly  exhibited  a  strong 


|f     .1: 


"  Charley's  Judicature  Acts,  3d  ed.,  1S77,  pp.  32,  1014. 


i( 


CONTROL  BY  APPEALS  TO  COURTS  OF  LAW,  ETC.  223 


desire  not  to  part  with  the  right  of  appeal  from  colo- 
nial courts  to  the  queen  in  council/ 

Since  the  establishment  of  responsible  government 
in  the  princ'pal  British  colonies,  the  supreme  interpre- 
tation and  application  of  the  law  upon  appeal  to  the 
mother  country  has  become  almost  tlie  sole  remaining 
exercise  of  power  exercised  through  the  Crown  over 
the  self-governing  dependencies  of  the  realm.  But,  even 
in  the  colonies  which  have  been  entrusted  with  the 
largest  measure  of  local  self-government,  the  right  of 
appeal  to  the  privy  council  continues  to  be  regarded 
with  the  greatest  respect  and  appreciation.''' 

This  is,  moreover,  one  of  the  rights  of  the  sub- 
ject with  which  the  Crown,  by  its  mere  prerogative, 
cannot  interfere ;  for  the  Crown  has  no  power  to  de- 
prive the  subject  of  any  of  his  rights.  Although,  with 
the  consent  of  the  other  branches  of  the  legislature, 
the  Crown  is  enabled  to  exercise  this  power/ 

Thus,  by  the  act  passed  by  the  parliament  of  Canada,  Supreme 
in  1875,  "  to  establish  a  Supreme  Court,  and  a  Court  of  callada. 
Exch'^quer,  for  the  dominion  of  Canada,"  it  is  enacted 
that  "  the  judgment  of  the  Supreme  Court  shall  in  all 
cases  be  final  and  conclusive,  and  no  appeal  shall  be 
brought  from  any  judgment  or  order  of  the  Supreme 
Court  to  any  Court  of  Appeal  established  by  the  Parlia- 
ment of  Great  Britain  and  Ireland,  by  which  appeals  or 
petitions  to  her  Majesty  in  council  may  be  ordered  to 
be  heard  :  saving  any  right  which  her  Majesty  may  be 
graciously  pleased  to  exercise  by  virtue  of  her  royal 
prerogative."  ^ 

But  this  act  does  not  deprive  the  subject  in  Canada, 


^  Evidence  of  Mr.  Ilemy  Reeve, 
before  tlie  Lords'  coiuniittee  on 
appellate  jurisdiction,  l!S7'J,  pp.  17, 
34.  And  see  Cliahners's  Political 
Annals,  pp.  301,  071,  GS7. 

^  See  Ilaiis.  Deb.  vol.  coil.  p. 
1284;  vol.  ccviii.  p.  930. 


'  Forsyth  Const.  Law,  p.  .378. 

y  Can  .'Act,  38  Vict.  c.  1 1,  sec.  47. 
See  also,  the  acts  niakinir  further 
provision  in  regard  to  these  comts, 
of  39  Vict.  c.  2U ;  and  of  42  Vict. 
c.  39. 


i'.: 


\l% 

■             J' 

\ 

S         : 

1         , 

!  ■           ■ 
t    :        .-■■: 

!  ■    ;, 

l.^' 


224       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


I'l  <  ! 


iv^ 


I 


''■|     ;■ 


^. 


Right  of 
a  Pinal  to 
j)rivy 
council. 


of  the  right  to  appeal  from  the  judgment  of  the  Court 
of  Queen's  Bench;  or  court  of  review,  direct  to  the  queen 
in  council.  Appellants  therefore  have  the  choice  of 
carrying  their  suit  for  final  determination  either  to  the 
Supreme  Court  of  Canada,  or  to  the  judicial  committee 
of  the  privy  council.'' 

It  has  since  been  decided  by  the  judicial  committee, 
that,  no ;  withstanding  the  foregoing  statute,  tlie  judicial 
committee  are  competent,  in  any  proper  case,  to  advise 
her  Majesty  to  allow  an  appeal  to  the  privy  council  from 
a  judgment  of  the  Suprer  e  Court  of  Canada.'' 

And,  in  1876,  the  judicial  committee  decided  that  an 
act  of  the  Quebec  legislature  transferring  the  right  of 
trying  election  petitions  from  the  Legislative  Assembly 
of  the  province  to  the  judges  of  the  Superior  Court,  which 
declared  that  "  such  judgment  shall  not  be  suscepti- 
ble of  appeal,"  did  not  thereby  infringe  on  the  preroga- 
tive right  of  the  Crown  to  hear  appeals ;  wdiich  right 
cannot  be  taken  away  by  any  statute,  except  by  express 
w^ords.  But  from  the  peculiar  nature  of  this  particular 
act,  to  which  the  Crown  had  assciiLed  and  which  affected 
the  rights  and  privileges  appertaining  to  the  Legislative 


"  De  Gaspe  et  al.  v.  Bessener  et 
al.  Law  Times  Rep.  '.'.  S.  voL 
xxxix.  p.  o.jO.  In  1878,  the  Court 
of  (Queen's  Bench  at  Montreal  de- 
cided, ill  the  case  of  tlie  City  of 
Montreal  v.  Devlin,  that  leave  to 
appeal  to  the  privy  council  from  a 
judgment  of  the  Court  of  Queen's 
Bench,  Quebec,  must  be  granted, 
upon  the  application  of  one  party  to 
the  suit,  notwithstanding  that  the 
adverse  party  had  previously  ob- 
tained leave,  on  application  to  an- 
other judge  in  chambers,  to  appeal 
from  the  same  judgment  to  the  Su- 
preme Court  of  Canada.  Whatever 
might  be  tlie  inconveniences  result- 
ing from  the  allowing  in  the  same 
case  of  a  double  appeal,  to  two  sepa- 
rate tribunals,  whose  decisions  are 


each  held  by  law  to  be  supreme  and 
final,  the  court  could  not  refuse  to 
grant  the  appeal  to  the  privy  coun- 
cil, being  equally  bound  so  to  do  by 
the  precise  text  of  the  law,  as  was 
the  judge  in  chambers  to  allow  the 
appeal  sought  for  to  the  Supreme 
Court.  It  will  be  for  the  legislature, 
hereafter,  to  prevent  a  recurrence  of 
this  anomaly.  (Lower  Canada 
Jurist,  vol.  xxii.  p.  loG.)  In  this 
particular  case,  however,  the  parties 
to  the  suit  finally  came  to  a  compro- 
mise, so  that  neither  appeal  was 
prosecuted. 

*  St.  Andrew's  Church,  IMon- 
treal,  v.  Johnston ;  Appeal  Cases, 
vol.  iii.  p.  l")!).  Law  Times  Kep. 
N.  S.  vol.  xxxvii.  p.  5.J0» 


lES. 

5  Court 
J  queen 
loice  of 
'  to  the 
amittee 

imittee, 
judicial 
)  advise 
3il  from 

that  an 
'ight  of 
saembly 
t,  which 
uscepti- 
Dreroga- 
;h  right 
express 
rticular 
affected 
islative 


feme  and 

•efuse  to 

ivy  coiiu- 

to  do  by 

a?  was 

allow  the 

Supreuie 

jislatiire, 

irreuce  of 

Canada 

In  this 
le  parties 
conipio- 
jeal    was 

h,  INIon- 
il  Cases, 
les  Hep. 


GRANTS  OF  HONOURS  AND  TITULAR  DISTINCTIONS.      225 

Assembly  independent  of  the  Crown,  it  was  evident 
that  it  could  not  have  been  the  intention  of  the  legisla- 
ture to  have  created  a  tribunal  which  should  be  liable 
to  have  its  decisions  reviewed  upon  an  appeal  to  the 
Crown,  under  its  prerogative.'' 

In  order  to  ratify  by  the  authority  of  Parliament  the 
principle  asserted  in  the  case  of  St.  Andrew's  church, 
Montreal,  above  cited,  that  no  British  subject  throughout 
the  queen's  dominions  shall  be  deprived  of  the  liberty 
of  appeal  to  the  privy  council,  it  was  provided  in  the 
fifty-first  section  of  the  South  Africa  union  act,  1877, 
that  no  act  of  the  union  parliament  shall  be  construed 
to  abridge  the  right  of  appeal  to  the  queen  in  council 
from  any  judgment  of  the  general  Court  of  Appeal  to  be 
hereafter  established  in  South  Africa. 


Imperial  Dominion  exercisable  over  Self-governing  Colonies : 
g.  Bi/  the  grant  of  honours  and  titular  distinctions  in  the  colonies. 

Having  passed  under  review  the  use  and  control  of 
the  various  prerogatives  of  the  Crown  that  are  inci- 
dental to  tho  ordinary  administration  of  government  in 
a  limited  monarchy,  we  have  next  to  consider  certain 
extraordinary  prerogatives  appertaining  to  the  sove- 
reign, which  are  exceptional  in  their  nature  and  personal 
in  their  exercise,  and  which,  accordingly,  arc  not  trans- 
missible from  the  Crown  by  any  general  delegation,  but 
are  only  confided  as  a  matter  of  high  trust  to  certain 
eminent  public  functionaries  who  are  specially  commis- 
sioned by  the  sovereign  to  administer  the  same.  These 
are,  firstly,  the  prerogative  wherein  the  sovereign  acta 
as  the  fountain  of  honour ;  secondly,  the  prerogative 
of  mercy.     These  prerogatives,  from  their  especial  cha- 


'»  Thfeberge  v.  Laudry,  Appeal  Cases,  vol.  ii.  p.  102;  Law  Times  Rep. 
N-  S.  vol.  XXXV.  p.  040. 

15 


I  i^ 


£,.  !i 


1   I 


226     rAKLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


li 


i'  II 


wf  > 


Preroga- 
tive of 
liuiiuur. 


I  low  ad- 
ministered 
in  tlie 
colonies. 


ractcristics,  are  not  included  in  the  ordinary  delegation 
of  powers  to  a  governor  or  a  lieutenant-governor,  but  are 
either  reserved  for  the  exercise  of  the  sovereign  directlv, 
or  are  administered  by  a  viceroy  or  governor-general  by 
express  delegation  to  him  as  the  queen's  representative.*^ 

It  is  a  constitutional  principle  of  great  importance  that 
all  honours  conferred  upon  individuals  in  any  part  of 
the  empire  should  emanate  from  the  highest  source  of 
authority  and  dignity.  They  should  be  bestowed,  as 
far  as  possible,  by  the  spontaneous  action  of  the  sove- 
reign, and  not  necessarily  or  exchisively  at  the  insti- 
gation of  others.  Nevertheless  this  prerogative,  like 
every  other  function  of  royalty,  mu3t  be  exercised 
"with  the  concurrence  and  upon  the  responsibility  of 
ministeis;  and  recommendations  in  respect  to  tlie  same 
are  suitably  tendered  to  the  sovereign  by  the  prime 
minister.'' 

In  regard  to  the  distribution  of  honours  in  the  colo- 
nies, Lord  Elgin,  when  governor-general  of  Canada  in 
1858,  wrote  to  the  colonial  secretary  (the  Duke  of  New- 
castle) as  follows  :  "  Now  that  the  bonds  formed  by  com- 
mercial protection  and  the  disposal  of  local  offices  arc 
severed,  it  is  very  desirable  that  the  prerogative  of  the 
Crown,  as  the  fountain  of  honour,  should  be  employed, 
in  so  far  as  this  can  properly  be  done,  as  a  means  of 
attaching  the  outlying  parts  of  the  empire  to  the 
throne."  "  As  a  general  rule,  imperial  honours  should 
appear  to  emanate  directly  from  the  Crown,  on  the 
advice,  if  you  will,  of  the  governors  and  imperial  minis- 


c  Earl  of  Carnarvon's  Despatch  to 
Governor  Robinson,  of  New  South 
Wales,  Oct.  7,  1874,  in  Commons 
Papers,  1875.  vol.  liii.  p.  677. 
And  see  Sir  John  A.  Macdonald's 
Memorandum  as  minister  of  justice, 
dated  Jan.  3,  1872,  to  the  governor- 
general  of  Canada.  Canada  Sess. 
Papers,  1877,  no.  89,  p.  332. 


d  Todd,  Pari.  Govt.  i.  3GG.  Hans. 
Deb.  vol.  cxcii.  p.  1813;  vol.  cxciii. 
p.  1835;  vol.  ccxxiii.  p.  975.  And 
see  Martin,  Life  of  the  Prince  Con- 
sort, vol.  iii.  p.  178.  Torrens,  Life 
of  Melbourne,  vol.  ii.  p.  10!).  Wel- 
lington's Despatches,  3d  series,  vol. 
7,  pp.  ISO,  306. 


I 


I1 


ration 
utare 
ectlv, 
I'al  by 
itive." 
e  that 
>art  of 
irce  of 
ed,  as 
!  sove- 
insti- 
j,  like 
;rcised 
lity  of 
1  same 
prime 

e  colo- 
ada  in 
'  New- 
y  com- 
es are 
of  the 
oyed, 
ans  of 
o   the 
hould 
3n  the 
minis- 


GUANTS  OF  HONOURS  AND  TITULAR  DISTINCTIONS.      227 

ters,    but    not  on   the   recommendation  of  the   local 
executives. " " 

This  principle  has  been  generally  recognized  in  the 
exercise  of  this  prerogative  in  the  colonies,  liules  and 
regulations  in  regard  to  honours  and  tables  of  prece- 
dence, and  decisions  to  determine  controverted  ques- 
tions arising  out  of  the  same,  are  communicated  to 
colonial  governors  by  her  Majesty's  secretary  of  state 
for  the  colonies. 

In  the  absence  of  and  subject  to  any  imperial  or  colo- 
nial enactment,  or  any  royal  declaration  or  instructions  p^.^^,^ 
decisive  of  or  bearing  on  the  question,  the  precedence  •i*"''^'  '•> 
to  be  given  to  British  subjects  resident  in  any  colony  nks. 
must  be  determined  by  the  governor,  as  representing  the 
Crown  in  its  character  of  the  fountain  of  honour. 

The  sixth  chapter  of  the  ''  Official  Rules  and  Regula- 
tions for  her  Majesty's  Colonial  Service  "  (edition  1879), 
deals  with  this  question,  and  treats  of  precedency,  the 
conferring  of  the  decoration  of  "  the  Victoria  cross," 
military  and  naval  salutes,  and  colonial  imiforms.  In 
regard  <  j  precedence  of  colonial  officers,  it  is  stated  that 
this  is,  in  some  cases,  regulated  by  colonial  enactments, 
to  which  the  Crown  must  necessarily  have  assented  by 
royal  charters,  by  instructions  communicated  either 
under  the  royal  signet  and  sign-manual  through  the 
secretary  of  state,  or  by  authoritative  usage.  In  the 
absence  of  any  such  special  authority,  governors  are 
directed  to  guide  themselves  by  the  subjoined  table. 
It  may  be  serviceable  in  this  connection  to  compare 
the  general  official  table  of  precedence  with  the  speci.al 
table  for  use  within  the  dominion  of  Canada,  —  which 
was  transmitted  by  the  queen's  command,  after  having 
received  her  Majesty's  approval,  to  the  governor-gene- 
ral of  Canada  on  July  23,  1868,   and  was  published 


*  Walrond,  Letters  of  Lord  Elgin,  p.  114. 


^\ 


M  ' 


I  l| 


\    : 


V  '1 


228    PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


Prece- 
dence in 
Canada 
and  in 
other  colo- 
nies com- 
pared. 


in  the  dominion  official  gazette,  —  pointing  out  at  the 
same  time  any  variations  between  the  two  tables  arising 
out  of  the  altered  circumstances  of  Canada  under  the 
British  North  America  act  of  1867,  and  any  additional 
regulations  since  received  on  the  same  subject. 


I    i; 


il    V 


i;- 


1. 1 


General  Table  of  Colonial  Precedence. 

1.  The   governor,  lieutoimut-gover- 

iior,   or   officer    adnuiiisteriug 
the  govern luent. 

2.  The  se;iior  officer  in  command  of 

'e  troops,  if  of  tlie  rank  of 
general,  and  the  officer  in  com- 
mand of  her  ^/lajesty's  naval 
forces  on  the  station,  if  of  the 
rank  of  an  admiral,  their  own 
relative  rank  being  determined 
by  the  queen's  regulations  on 
that  subject. 


3.  The  bishop. 


Table  of  Precedence  for  Canada. 

1.  The  governor-general,  or  officer 

administering  the  government. 

2.  The  same  as  in  the  general  ta- 

ble. 


3,  4,  5,  6.  The  lieutenant-governor 
of  the  several  provinces  of  On- 
tario, of  Quebec,  of  Nova  Sco- 
tia, and  of  New  Brunswick. 
[And  in  their  apjiropriate  or- 
der, the  lieutenant-governors 
of  provinces  afterwards  added 
to  the  dominion.] 

7.  Archljishops  and  bishops,  accord- 
ing to  seniority  [of  consecra- 
tionj.f 


'  lici.tre  the  removal  of  Roman 
Ca';lHrii.  disabilities  by  the  Imperial 
Parliament,  nrelates  of  the  Roman 
Catholic  Cliuich  in  the  British  co- 
lonies 'vero  not  ns"ully  addressed 
by  the  title  to  which  their  rank  in 
their  own  church  entitled  them. 
But  on  Nov.  20,  1S17  (Parliament 
having  by  a  recent  act  formally  re- 
cognized the  rank  of  the  Irish  Roman 
Catliolic  prelates,   by  giving   them 

} precedence  innnediately  after  pre- 
ates  of  the  established  church  of  the 
same  degree),  a  circular  despatch 
was  addressed  to  colonial  governors 
by  Earl  (Jrey,  authorizing  the 
Roman  Catholic  prelates  to  be  offi- 
cially addressed  by  the  title  of 
"your  Grace"  or  "your  Lordship," 
a.s  the  case  may  be.  This  desjiatch 
was     understood     as     authorizing 


the  precedence  of  Roman  Catholic 
Church  dignitaries  to  follow  innne- 
diately after  Anglican  dignitaries 
of  tiie  same  order  and  degree.  It 
was  afterwards  qualifuHl,  to  some 
extent,  by  a  circular  despatch  from 
the  Duke  of  Newcastle  dated  TV' ay 
3,  ISUO,  which  simj)!/  recognized 
as  of  "the  Episcopate"  all  chief 
otHoers  of  the  Roman  Church,  and 
assigned  them  positions  next  after 
"  the  Episcopate  which  derives  its 
rank  from  the  Queen's  letters-pa- 
tent." This  despatch  further  pro- 
vided that  "  the  dignitic^s  of  metro- 
politan, archl)ishop,  or  (it  may  be) 
patriarch,  should  only  be  recognized 
by  her  !^iajesty's  officers  when  ad- 
mitted by  bishops  of  each  commu- 
nion as  I'egnlating  tlujir  i)recedence 
inter  se  "     (Soutli  Australia  Pari. 


\ 

s 
c 
II 
d 
J 
a 
g 

0 

t( 
b 
I 

S( 

c 

p 

o 
k 
a 
n 


IS. 

,  at  the 
arising 
ier  the 
litional 

Canada. 

or  officer 
ernmeut. 

jneral  ta- 


GRANTS  OF  HONOURS  AND  TITULAR  DISTINCTIONS.      229 


-governor 
;es  of  On- 
!^ova  Sco- 
ruiiswick. 
priate  or- 
governors 
rds  added 

>s,  accord- 
cousecra- 


Catholic 

ivv  iiume- 

gnitaries 

jree.     It 

to  some 

itoh  from 

atod  ^'ay 

pcoguizod 

all   chief 

nch,  and 

oxt  after 

rives  its 
'tters-pa- 
tlier  pro- 
of metro- 
may  be) 
ecognized 
when  ad- 

commu- 
rccedonce 

ia  Purl. 


4.  The  chief  justice.'' 


The  senior  officer  in  command 
of  the  troops,  if  of  the  rank  of 
colonel  or  lieutenant-colonel, 
and  the  officer  in  connnand 
of  hor  Majesty's  naval  forces 
on  the  station,  if  of  equiva- 
lent rank;  their  own  relative 
rank  being  determined  by  the 
queen's  r<;gulations. 


8.  Members  of  the  cabinet,  accord- 

ing to  seniority. 8 

9.  The  speaker  of  the  Senate, 

9  a.  The    chief-justice  of    the    Su- 
preme Court.' 

10.  The  cliief  judges  of  the  courts 

of  law  and  equity,  according 
to  seniority. 

11.  Members  of  the   privy  council 

not  of  the  cabinet. 

12.  General  officers  of  her  Majesty's 

army  serving  in  the  dominion, 
and  officers  of  the  rank  of  ad- 
miral in  the  royal  navy,  serv- 
ing on  the  British  North 
American  station,  not  being 
in  the  chief  connnand;  the  re- 
lative rank  of  sucli  officers  to 


Proc.  1871,  appx.  no.  115.)  Con- 
sequent upon  a  judgment  of  the 
privy  council  in  1805,  in  the  case 
of  the  bishop  of  Natal,  —  that  while 
the  sovereign  liad  luidoubted  right, 
by  virtue  of  her  prerogative,  to  give 
style,  title,  dignity,  and  precedence, 
in  all  parts  of  her  dominions,  she 
had  no  power  to  issue  letters-patent 
professing  to  create  episcopal  sees, 
fiic,  in  colonies  possessing  represen- 
tative institutions,  —  the  home  go- 
vernment resolved  to  refrain  hence- 
forth from  issuing  letters-patent  to 
bishops  in  such  colonies.  (Todd, 
Pari.  Govt.  vol.  i.  pp.  310-;512.) 
This  destroyed  the  last  remaining 
vestige  of  state  superiority  in  bi- 
shops of  the  Anglican  church  in  the 
colonies,  over  bishops  of  other  com- 
munions. Accordingly,  the  Cana- 
dian table  of  precedence  places  the 
Anglican  and  Romish  bishops  ou 
an  equal  footing  of  ^irecedence, 
giving  them  place  according  to  seni- 
ority of  appointment. 

8  Special  jirecedence  is  assigned 
to  "cabiiu't  ministers"  in  Canada, 
because  they  form  part  (under  the 
Kritish  North  America  Act,  IRflT, 
sec.  11),  of  the  Queen's  privy  coun- 
cil for  Cana<la.  In  England  all 
privy  councillors  have  precedence 
of  legal  functionaries  except  of  the 
lord  high  chancellor,  who  is  always 
a  privy  coiuicillor.  See  Dodd,  Ma- 
nual of  Dignities,  pp.  50,  51. 


''  This  is  in  conformity  with  the 
English  Table  of  Precedence,  which 
places  the  highest  legal  function- 
ary (the  lord  chancellor)  next  after 
the  highest  ecclesiastical  officer  (the 
Archbishop  of  Canterbury),  and  be- 
fore the  lord  president  of  the  pi'ivy 
council.  Dodd,  Manual  of  Digni- 
ties, pp.  31-33. 

'  The  .secretary  of  state  for  the 
colonies  (Sir  M.  Hicks-Beach),  in  a 
despatch  dated  Oct.  31,  lb78,  aji- 
proved  of  an  arrangement  made  by 
the  governor-general  of  Canada,  un- 
der which  all  judges  of  the  Supreme 
Court  took  pi'ecedence  next  after 
the  siieaker  of  the  Senate  (Canada, 
Dominion  Gazette,  Dec.  14,  1878). 
But  by  a  later  despatch  to  the  go- 
vernor-general of  Canada,  dated 
Nov. ^3,  1879,  the  chief-justices  of 
the  .'"several  superior  courts  of  law 
and  'Mpiity  in  the  different  provinces 
of  the  dominion,  are  to  take  rank 
next  after  the  chief-justice  of  the 
Suprenu'  Court  of  Canada;  and  the 
puisne  judges  of  the  said  Supreme 
Court  next  before  the  puisne  jiidg<^s 
of  the  several  provincial  superior 
courts.  Lord  Carnarvon,  then  .sec- 
retary of  state,  in  a  despatch  of 
Aug.  29,  1S77,  to  Australian  go- 
vernors, decided  that  retired  judges 
of  the  supreme  courts  in  .Vustralia 
;-ihonld  retain  the  lille  of  "  hoiionra- 
ble  "  for  lite,  within  the  colony, 
with  precedence  next  after  the  ex- 


' '  'M 


r 


♦  ! 


!• ; 


I 


230     PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


1^'  J  i 


I'rcce- 
(loiu'o  in 
Canada 
and  in 
other  co- 
lonies 
com- 
pared. 


The  nienibers  of  the  Executive 
Council.'' 


7.  Tlie  president  of  the  Legislative 

Council. 

8.  The  members  of  the  Legislative 

Council. 

9.  The  sj)eaker  of  the  House  of  As- 

sembly. 

10.  The  puisne  judges. 


11.  The  members  of  the  House  of 
Assembly. 


12,  &c.  The  remaining  office-holders 
in  tliis  list  include  various 
heads  of  departments,  not  be- 


be  determined  by  the  queen's 
regulations.J 

13.  Similar  to  no.  5  in  the  general 

table. 

14.  Members  of  the  Senate. 

J  5.  Speaker  of  the  House  of  Com- 
mons. 

15  a.  Puisne  judges  of  the  Supreme 
Court. 

10.  Puisne  judges  of  the  courts  of 
law  and  equity  according  to 
seniority. 

17.  INIembers  of  the  House  of  Com- 


18. 

19. 
20. 
21. 


mons. 

Members  of  the  Executive 
Council  (provincial),  within 
their  province. 

Speaker  of  the  Legislative  Coun- 
cil, within  his  province. 

Members  of  the  Legislative 
Council,  within  their  province. 

Speaker  of  the  Legislative  As- 
.sembly,  within  his  province. 

Members  of  the  Legislative  As- 
sembly, within  their  province. 


ifMng  judges  of  their  respective 
courts.  And  by  Sir  M.  llicks- 
lieach's  despatch  of  Oct.  'M,  1878, 
similar  precedence  is  allowed  to 
ex-judges  of  all  other  courts;  viz., 
a  retired  chief-justice  befi)re  actual 
puisne  judges,  and  retired  puisne 
judges  next  after  thctse  in  service. 
Victoria,  Leg.  Assend)ly  Jou-i'uals, 
1877-78,  appx.  H.  no.  10;  and 
Canada  Orders  in  Council,  &c.,  pre- 
fixed to  Can.  Stats,  for  1879,  p.  11. 
i  By  the  Canada  militia  acts  of 
I8(i8  and  \f>~o,  tlie  officer  in  com- 
mand of  the  dominion  militia  shall 
have  the  rank  of  inajor-gcneral  in 
the  militia  of  Canada;  and  the  ad- 
jutant-general at  lieadquarters  the 
rank  of  colonel  in  the  militia.  Olfi- 
cers  of  her  JNIajesty's  regular  army 
shall  always  be  reckoned  senior  to 
militia  officers  of  the  same  rank, 
whatever  be  tlu>  dates  of  their  re- 
spective commissions.  The  relative 
rank  and  authority  of  officers  in  the 


militia  .shall  be  the  same  as  tliat  in 
the  regular  army. 

By  a  circular  despatch  from  the 
secretary  of  state  for  the  colonies 
to  colonial  governors,  dated  Alarch 
17,  1879,  revised  regulations  are 
promulgated  with  regard  to  the  in- 
terchange of  visits  between  officers 
of  her  Majesty's  ships  and  gover- 
nors, lieutenant-governors,  adminis- 
trators, and  presidents  of  colonies. 
Under  the  new  regulations  piovision 
has  been  made  for  paying  and  re- 
turning visits,  in  certain  cases,  by 
deputy;  and  it  is  provided  that  olfi- 
oers  acting  temporarily  in  liigiuM' 
civil  offices  or  comnumds  are,  in 
resjject  of  visits,  to  be  upon  the 
same  footing  as  if  they  weie  con- 
firmed in  such  offices  or  commands. 
Orders  in  Counoil,  ike.  prefixed  to 
Canada  Statutes  for  1879,  p.  42. 

^  Bt'fore  the  confederation  of  the 
Britisji  North  American  provinces, 
and  subsecpient  to  the  introduction 


om  the 
colonies 

Miirch 

iDiis    are 

the  in- 

o  nice  IS 

jifover- 
liiiinis- 
)loiiies. 
ovision 
and  re- 
ises,  h_y 
lilt  o(H- 

liigher 
arc,  in 
>on   tiie 

10  coii- 
iiiands. 

lixfd  to 
..  4l2. 

11  of  the 
)vinocs, 
diictiun 


GRANTS  OF  HONOURS  AND  TITULAR  DISTINCTIONS.      231 

ing  members  of  the  executive 
council,  and  other  principal 
officials;  but  inasmuch  as  the 
relative  importance,  as  well  of 
duty  as  of  position,  of  these 
functionaries  differs  according 
to  local  custom,  they  need  not 
be  enumerated  here;  especially 
as  liberty  has  been  given,  as 
will  be  presently  shown,  to 
governors  of  particular  colo- 
nies to  fix  the  precedence  of 
local  officers  of  the  civil  ser- 
vice therein. 

In   connection   with  the   foregoing  table   of  prece- 
dence for  Canada,  her  Majesty  was  pleased  to  approve  Titular 
of  the  adoption  of  revised  regulations  in  respect  to  the  [ums^' 
style  and  title   to  be  used  by  the  following  person- 
ages :  — 

The  governor-general  of  Canada  to  be  styled  "  his 
Excellency." 

The  lieutenant-governors  of  the  provinces  to  be 
styled  "  his  Honour." 

The  privy  councillors  of  Canada  to  be  styled  "  Ho- 
nourable," and  for  life. 

Senators  of  Canada,  executive  councillors  of  the 
provinces,  the  president  of  the  Legislative  Councils,  and 
the  speakers  of  the  Houses  of  Assembly  in  the  pro- 
vinces, to  be  severally  styled  "  Honourable,"  but  only 


m 

Canada. 


excep- 
regard 
iu  the 


of  responsible  government  therein, 
it  was  the  rule  that  when  an  execu- 
tive councillor  retired  from  office, 
he  w.'is  no  longer  entitled  to  be 
styled  "honourable."  An 
tion  was  nnule,  however,  in 
to  persons  who  had  .served 
capacity  of  councillors  "  for  any 
considerable  time,  or  with  pecu- 
liar distinction."  Such  individu- 
als, upon  the  recommendation  of 
the  governor,  and  by  command  of 
the  sovereign,  conveyed  ordinarily 
tliroiigli  a  despatch  from  the  secre- 
tary of  state  (and  in  exceptional 
cases  by  warrant  imder  the  royal 
sign-manual),  were  permitted  to  re- 


tain the  title  of  "  honourable,"  upon 
retiring  into  private  life;  with  pre- 
cedence next  after  executive  coun- 
cillors for  the  time  being,  and, 
between  themselves,  according  to 
their  seniority  upon  retirement. 
(Nova  Scotiu  Asstunbly  Journals, 
1859,  appx.  nos.  2-i  and  ;5:5.)  The 
rule  was  afterwards  established  in 
every  colony  under  the  British 
Crown,  that  executive  councillors 
who  have  held  office  "  for  three 
years  "  should  be  permitted  to  re- 
tain the  title  of  "honourable"  for 
life  with  the  precedence  above-men- 
tituied.  New  Zealand  Pari.  Papers, 
1878,  appx.  A.  1,  pp.  15-16. 


I. 


:1 


\ 


i, 


I 


Honours 
conferred 
upon  Ca- 
nadian 
states- 
men in 
18ti7. 


232       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

during  office,  and  the  title  not  to  be  continued  after- 
wards. 

Gentlemen  who  were  legislative  councillors,  at  the 
time  of  the  union,  are  permitted  to  retain  their  title 
of  "  Honourable,"  for  life  ;  but  legislative  councillors 
in  the  provinces  are  not  in  future  to  have  that  title.' 

Shortly  after  the  passing  of  the  imperial  act  of  1867, 
for  the  confederation  into  one  dominion  of  Canada  of 
the  various  colonies  of  British  North  America,  her 
Majesty  was  graciously  pleased  to  signify  her  inten- 
tion of  conferring  special  marks  of  royal  grace  and 
favour  upon  seven  principal  C  riadian  statesmen,  who 
had  been  instrumental  in  the  accomplishment  of  that 
great  undertaking. 

Accordingly,  upon  July  1,  1867,  the  appointed  day 
for  bringing  into  political  existence  the  nev'  dominion, 
the  premier  of  Canada  (Sir  John  A.  Macuonald)  was 
created  a  Knight  Commander  of  the  Bath.  The  posi- 
tion of  Companion  of  the  Bath  was  at  the  same  time 
conferred  upon  certain  ministers  of  state  in  the  do- 
minion. Two  of  the  most  eminent  members  of  the 
administration,  however  (Messrs.  G.  E.  Cartier  and 
A.  T.  Gait),  asked  leave  to  decline  the  proffered  dis- 
tinction, on  the  groiuid  that  their  prominent  public 
services  and  recognized  position  in  Canada  would  not 
warrant  them  in  accepting  a  lower  degree  of  distinc- 
tion, in  the  distribution  of  honours  upon  this  occasion, 
tlian  that  which  had  been  assigned  to  Sir  John  A.  Mac- 
donald,  lest  their  public  usefulness  should  be  thereby 
impaired.  After  some  delay,  owing  to  the  technical 
difficulty  that  there  was  no  precedent  for  refusing  an 


'  For  tlipsn  despatclies,  and  tlie  I lousp  of  Commons  "  fiom  the  list 

Table  of  Precedonce  for  Canada,  see  of  otlicc-beariMs  in  Canada  wlio  are 

tlie  volume  of  Dominion  Orders  in  entitled  to  be  calh-d  *'  honourable  " 

Coimcil,    Proclamations,    «&c.,    pp.  was  purely  accidental.     Hy  usage, 

427-4129.     It  is  understood  tiiat  the  tlie    title    is    ahvays    conceded    to 

omission   of   the   "  speaker  of   the  him. 


i   '] 


GRANTS  Ox!"  HONOURS  AND  TITULAR  DISTINCTIONS.      233 

honour  which  had  actually  been  conferred  upon  an 
individual  by  the  sovereign,  a  method  was  adopted 
which  met  the  views  of  these  gentlemen,  without  les- 
sening their  self-respect  or  exposing  their  motives  to 
possible  misconstruction.'" 

On  March  23,  1868,  the  Canadian  House  of  Com- 
mons passed  an  address,  asking  for  copies  of  the  cor- 
respondence upon  this  subject.  Upon  receipt  of  the 
same,  the  papers  were  referred  to  a  select  committee. 
On  May  15,  this  committee  reported  a  recital  of  the 
facts  above  stated,  and  expressed  satisfaction  that  her 
Majesty  had  since  been  pleased  to  raise  Mr.  G.  E.  Car- 
tier  to  the  dignity  of  a  baronet  of  the  United  King- 
dom. While  this  gracious  act  had  removed  any  cause 
of  misconstruction,  so  far  as  Mr.  Cartier  wp  >  concerned, 
the  committee  observed  that  it  placed  Kr.  Gait  in  a 
still  more  objectionable  position.  They  therefore  re- 
commended the  presentation  of  an  address  to  the 
queen,  praying  hv^r  Majesty  to  cause  such  a  remedy  to 
be  applied  as  might  remove  the  grievance  justly  felt 
by  Mr.  Gait.  Where  pon,  an  address  to  the  queen 
was  immediately  adopted  by  the  house,  and  transmit- 
ted through  the  governor-general."  No  reply  to  this 
address  was  communicated  to  the  house  ;  but,  in  the 
ensuing  year,  the  dignity  of  Knight  of  the  Order  of 
St.  Michael  and  St.  George  was  conferred  upon  Mr. 
Gait,  in  acknowledgment  of  his  official  services  to  the 
Crown. 

In  1859.  the  governor  of  South  Australia  (Sir 
R.  G.  MacDonnell)  called  the  attention  of  the  colo- 
nial secretary  to  certain  deficiencies  in  the  table  of 
precedence  contained  in  the  "  General  Jolonial  Regu- 
lations," above  cited,  especially  in  regard  to  the  position 
ot  important  colonial  olHcers  not  named  in  that  table. 


Case  of 
Messrs. 
Cartior 
and  Gait. 


Proce- 
(U'lice  in 
South 
Australia. 


■"  Canada  Sess.  Papers,  1867-68,  no.  GJ. 
°  Canada  Commons  Journals,  May  15,  1868. 


i 

i  '  t 

r- 

'  ■  f  I'l 

Vl 

u 

¥ 

f' 

» 

..        1 

i 

\: 


! 


234       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


Tho  go- 
vernor to 
di'fide 
questions 
of  i)rc'ce- 
denco. 


He  observed  that,  in  India,  the  governor-general  in 
council  has  authority  to  settle  disputed  cases  of  prece- 
dence not  coming  within  her  Majesty's  specific  instruc- 
tions and  warrant ;  and  he  inquired  whether  a  similar 
power  could  not  be  intrusted  to  the  governor  of  a 
colony,  as  representing  the  queen,  so  that  he  should 
himself  decide  in  the  first  instance  (and  without 
formaUij  consulting  his  executive  council)  all  future 
disputed  questions  of  personal  precedence,  —  reporting 
his  decisions  invariably  to  the  secretary  of  state. 

In  reply  to  this  request,  the  Duke  of  Ne^vcastle  for- 
warded an  opinion  from  the  law  officers  of  the  Crown, 
for  the  information  and  guidance  of  Governor  Mac- 
Donnell,  which  distinctly  assigned  to  the  governor,  as 
representing  the  Crown,  the  right  and  duty  of  deter- 
mining all  questions  of  personal  precedence  in  a 
colony,  in  default  of  specific  rules  and  instructions 
already  prescribed  by  law  or  by  the  authority  of  the' 
Crown,  applicable  to  the  case.  "  In  determining  this 
precedence,  it  would  be  proper  for  the  governor  to 
have  regard  to  the  rules  of  precedence  existing  in  the 
mother  country,  and  to  proceed  by  analogy  to  them ; 
not  being,  however,  in  our  opinion,  bound  to  adhere 
strictly  to  those  rules,  in  instances  where  the  actual 
usages  of  the  colonial  society  or  the  requirements  of 
a  particular  case  or  class  of  cases  seem  to  him  to  jus- 
tify the  establishing  in  the  colony  of  a  different  rule. 
For  it  seems  to  us  that  a  co.ony,  though  practically 
subordinate,  must  be  regarded  as,  in  social  subjects, 
independent  of  the  mother  country ;  so  that  any  rule  of 
precedence  recognized  in  the  home  society,  but  resting 
on  usage  only,  is  not  necessarily  in  force  in  the  colony, 
where  the  whole  structure  of  the  social  system  may  be 
different  from  what  it  is  in  the  mother  country." 

The   opinion   proceeds   to  sug<^est  —  in   answer    to 
inquiries  sent  to  the  colonial  secretary  by  governors  of 


GRANTS  OF  HONOURS  AND  TITULAR  DISTINCTIONS.     235 

other  colonies  —  that  the  governor  is  free  "  to  de- 
termine, as  it  seems  fit  to  himself,  the  precedence 
which  he  will  allow  between  baronets  on  the  one  side 
and  sons  of  peers  on  the  other;"  and  likewise  "the 
precedence  which  he  will  allow  to  a  knight  on  the  one 
side  and  the  chief-justice  and  the  members  of  the  court 
of  policy  on  the  other."  "  A  consideration  of  the  hn- 
portance  of  conferring  rank  and  dignity  on  persons 
holding  office,  judicial  or  political,  would  properly 
have  much  influence  "  in  giving  the  latter  personages 
precedence  over  a  knight.  And  here,  it  should  be 
observed  that  the  one  hundred  and  fifty-eighth  section 
of  the  "■  Colonial  Service  Official  Kules  "  provides  that 
"  persons  entitled  to  precedence  in  the  United  King- 
dom or  in  foreign  countries  are  not  entitled,  as  of 
right,  to  the  same  precedence  in  the  British  colonies ; 
but,  in  the  absence  of  any  special  instructions  from  the 
queen,  the  precedence  of  such  persons  relatively  to  the 
colonial  officers,  in  the  above-mentioned  Table  of  Pre- 
cedence, w411  be  determined  by  the  governor,  having 
regard  to  the  social  condition  of  the  colony  under  his 
government." 

In  reference  to  the  precedence  due  to  wives  of  offi-  Jj^[;J;*of 
ciiil  persons,  the  opinion  of  the  law  officers  of  the  Crown  wivos  of 
proceeds  to  state  that  the  usage  in  England  is,  "  that  flcers!^ " 
the  rank  of  the  husband,  if  merely  official,  and  not  per- 
sonal to  himself,  does  not  entitle  the  wife  to  a  prece- 
dence higher   than   that  which   she   would  ordinarily 
have  by  virtue  of  her  husband's  personal  rank.     But 
we  think  that,  in  a  colony,  the  determination  of  the 
precedence  which  the  governor  is  to  give  to  the  wives 
rests  witli  him  to  the  same  extent  as  the  determina- 
tion of  the  precedence  to  be  given  to  the  husbands 
does  ;  and  that,  if  it  seems  to  him  expedient  to  depart 
from  the   usage  of  the  mother  country,  witli  respect 
either  to  ail  official  persons  or  to  the  holders  of  par- 
ticular offices,  he  is  at  liberty  to  do  so." 


V 

i   1 
'l 


■  '  r? 


f 


'  .;i 


il 


!       : 


N       1 


0     i 


')  ;] 


236       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


Ecclesias- 
tical pre- 
cedence in 
Sou  ill 
Australia. 


The  secretary  of  state  for  the  colonies  did  not  deem 
it  expedient  to  add  any  further  directions  to  this 
opinion  of  the  law  officers  of  the  Crown,  —  beyond  re- 
commending the  governor  to  adhere,  as  far  as  may  be 
practicable,  to  the  customs  of  the  colony  and  to  the 
table  of  colonial  precedence. 

Accordingly,  the  governor  of  South  Australia  (Sir 
James  Fergusson),  on  May  9,  1871,  fixed  provisionally, 
and  subject  to  the  approval  of  the  secretary  of  state,  a 
Table  of  Precedence  for  use  in  that  colony,  which  in- 
cluded all  the  principal  public  officers  therein.  The 
order  of  the  civil  service  was  recommended  for  the 
governor's  sanction  by  his  ministers." 

This  Table  of  Precedence  for  South  Australia,  was 
transmitted  to  the  House  of  Assembly,  in  compliance 
wi^h  an  address  from  that  chamber,  together  with  the 
aforementioned  despatches  and  correspondence  with  the 
home  government  in  relation  to  the  question. 

The  first  two  offices  in  this  table  —  having  prece- 
dence assigned  over  all  other  colonial  functionaries  — 
were  the  bishop  of  Adelaide,  and  the  Koman  Catholic 
bishop.  The  right  of  the  sovereign  to  confer  prece- 
dence upon  church  dignitaries,  —  irrespective  of  any 
connection  between  church  and  state,  —  in  any  part  of 
the  queen's  dominions,  has  been  already  pointed  out. 
It  has  been  shown  that  this  prerogative  right  has  been 
recognized  by  a  recent  decision  of  the  judicial  com- 
mittee of  the  privy  council;  and  that  in  Canada, 
where  all  churches  and  sects  are  upon  a  footing  of 
equality  in  the  sight  of  the  law,  precedence  is  given 
to  "  archbishops  and  bishops,"  —  next  after  the  go- 
vernor-general, and  the  officers  in  supreme  command 
of  her  Majesty's  military  and  naval  forces  in  Canada, 
and  the  lieutenant-governors  of  the  provinces.'' 


ni£ 


"  South  Australia  Pari.  Proc.  1871,  no.  115. 
P  See  ante,  p.  228,  note  f. 


GRANTS  OF  HONOURS  AND  TITULAR  DISTINCTIONS.      237 

The  South  Australian  legislature,  however,  were  not 
satisfied  with  this  arrangement.  They  disapproved  of 
any  precedence  being  allowed  to  ecclesiastical  functionor 
ries.  They  therefore  passed  a  bill  "  to  provide  for  the 
regulation  of  precedency  in  South  Australia,"  which 
was  designed  to  abolish  utterly  all  precedence  of  ec- 
clesiastics in  the  colony.  Upon  the  advice  of  the  colo- 
nial attorney-general,  and  in  conformity  with  the  royal 
instructions,  the  governor  reserved  this  bill  for  the 
signification  of  her  Majesty's  pleasure. 

The  colonial  secretary,  in  a  despatch  dated  Feb.  10, 
1872,  notified  the  governor  that  her  Majesty's  ministers 
had  been  unable  to  advise  that  this  bill  should  receive 
the  royal  assent ;  it  being  regarded  as  an  encroachment 
upon  the  undoubted  prerogative  of  the  queen,  as  the 
fountain  of  honour,  to  determine  the  precedence  of  her 
subjects.  Any  suggestion  to  amend  the  Table  of  Tve- 
cedence  in  force  in  the  colony,  whether  emanating  from 
the  governor,  with  the  advice  of  his  executive  council, 
or  from  either  or  both  of  the  houses  of  parliament  in  the 
colony,  would  always  be  most  attentively  considered, 
with  a  disposition  to  accede  as  far  as  possible  to  altera- 
tions proposed.  But  the  queen  could  not  be  advised 
to  deprive  individuals  (such  as  the  church  dignitaries 
especially  aimed  at  by  this  bill)  of  any  precedence  to 
which  they  were  now  entitled.'^ 

Whereupon,  on  June  19, 1872,  the  House  of  Assembly 
of  South  Australia  passed  an  address  to  the  queen, 
representing  the  grievance  felt  by  the  great  majority 
of  the  inhabitants  of  the  colony,  at  the  precedence 
assigned  to  dignitaries  of  the  Protestant  Episcopal  and 
Roman  Catholic  churches  over  ministers  of  other  re- 
ligious denominations  therein,  and  praying  her  Majesty 
by  the  exercise  of  her  prerogative  to  remove  the  same/ 

•>  South  Australia  Pari.  Papors,  1872,  nos.  61  and  68. 
'  Ihid.  1872,  Journals,  pp.  194,  230. 


..I 


it 


I 


* 


■  'I 


■'  *1 


t  >M 


I   I 


238      PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


Ki'clcsins- 
tical  titles 
in  the  co- 
luiiit'S. 


In  reply  to  tliis  address,  the  colonial  secretary,  in  a 
despatch  dated  Sept.  16,  1872,  conveyed  her  Majesty's 
assurance  that  no  bishop,  or  other  minister,  of  whatever 
persuasion,  to  be  hereafter  appointed,  should  be  allowed 
precedence  in  the  colony.  But  the  queen  could  not 
consent  to  deprive  any  minister  of  precedence  already 
conferred,  so  long  as  he  retains  his  office ;  though  he 
might  voluntarily  agree  to  relinquish  such  precedence." 

It  was  during  the  administration  of  William  Pitt, 
and  soon  after  the  first  appointment  of  colonial  bishops 
in  the  West  Indies,  that  it  was  agreed  to  allow  these 
dignitaries  to  be  styled  "my  Lord."  Since  then  the 
practice  has  become  general ;  although,  in  the  various 
letters-patent  issued  to  bishops  in  North  America  and 
in  Australia,  up  to  the  year  1866  (when  the  issue  of 
episcopal  letters-patent  in  the  colonies  was  abandoned), 
no  uniform  practice  was  observed.  At  one  time,  and 
in  one  instrument,  the  title  of  "lord"  would  be  appended 
to  that  of  bishop,  on  another  occasion  it  would  be  omit- 
ted; and  that  indifferently,  and  upon  no  definite  princi- 
ple.* Stubbs  tells  us,  however,  that  "  the  title  of '  lord ' 
does  not,  in  England,  imply  a  dignity  created  by  the 
Crown,  but  is  simply  a  descriptive  or  honorary  appen- 
dage to  some  other  dignity."  It  "  belongs  to  all  bishops 
in  all  churches,"  —  "nor  has  it  anything  to  do  with  a 
royal  prerogative  of  conferring  titles,  not  being  a  recog- 
nized grade  of  peerage."  "  If  this  be  correct,  and  few 
would  be  disposed  to  question  the  accuracy  of  so  learned 
and  painstaking  a  writer  as  Stubbs,  it  disposes  of  this 
vexed  question  in  a  very  satisfiictory  manner. 

Upon  tl  e  receipt  by  the  governor  of  New  Zealand, 
of  Lord  Carnarvon's  circular  despatch,  of  Aug.  29, 
1877,  above  mentioned,  in  reference  to  the  dignity  and 


i  ^h 


'  South     Australian     Journals,  vol.  xlviii.  pp.  855-914,  particularly 

1872,  no.  238.  p.  908. 

t  Todd,   Pari.   Gov.   vol.   ii.   p.         "Stubbs,   Const.  Hist,  of  Eng- 

524,  n.     Commons  Papers,   1867,  land,  vol.  iii.  p.  440. 


i    ;.fi 


GRANTS  OF  HONOURS  AND  TITULAR  DISTINCTIONS.      239 


precedence  of  judges  in  Australia/  the  premier  of  the 
colony  (Sir  George  Gre}^)  addressed  a  memorandum  to 
the  governor,  in  which  —  while  admitting  that  the 
action  taken  by  the  secretary  of  state  accorded  with 
the  washes  expressed  by  his  predecessors  in  office  — 
he  took  exception  to  the  interference  of  the  Crown,  in 
a  self-governing  colony  and  without  the  consent  of  the 
General  Assembly,  in  establishing  any  order  ol  rank  and 
dignity  therein. 

The  governor  transmitted  this  memorandum  to  the 
secretary  of  state  in  a  despatch,  dated  May  22,  1878, 
wherein  he  declares  his  inability  to  understand  the 
objection  raised  by  the  premier,  or  to  see  how  the  ex- 
ercise by  her  Majesty  —  who  is  constitutionally  the 
source  of  all  honours  throughout  the  empire  —  of  her 
undoubted  prerogative  in  conferring  distinction  upon  a 
retired  judge,  can  be  supposed  to  interfere  in  the  slight- 
est degree  with  the  constitution  of  New  Zealand,  or 
with  the  rights  and  privileges  of  the  local  parliament.'" 

On  April  27,  1818,  an  order  of  knighthood  known  as 
that  of  St.  Michael  and  St.  George  was  established  by 
letters-patent,  for  the  purpose  of  affording  an  appropri- 
ate medium  by  which  mLrks  of  royal  favour  might  be 
conferred  upon  the  natives  of  Malta  and  the  Ionian 
Islands  The  sovereignty  of  Malta  was,  and  is,  vested 
in  the  British  Crown,  while  the  Ionian  Islands  formed, 
at  that  period,  an  independent  state,  under  the  exclu- 
sive protection  of  the  king  of  England.     But,  in  1864, 


Riflht  of 
till'  sovo- 
rcifm  to 
confor  lio- 
Mouvs  in  a 

SC'lt'-gO- 

verniiig 
colony. 


Order  of 
St.  Mi- 
chael and 
St. 
George. 


*f'i 


V,  i' 


!'■ 


^'     'i 


▼  See  ante,  p.  229. 

^  New  Zealand  Pari.  Papers, 
1878,  A.  1,  pp.  15-18.  In  a  simi- 
lar narrow  and  mistaken  spirit,  Sir 
George  Grey  afterwards  remon- 
strated with  Sir  M.  Hicks-Beach  be- 
cause honours  for  political  services 
had  been  conferred,  on  the  advice  of 
her  Majesty's  colonial  secretary, 
upon  two  leading  members  of  the 
opposition  in  New  Zealand.     This 


proof  of  the  impartiality  of  the 
Crown,  and  its  paternal  recognition 
of  all  pid)lic  services,  was  thus 
turned  into  an  argument  against 
imperial  interference  in  colonial  af- 
fairs, in  a  letter  which  is  painful  to 
read  as  the  production  of  one  who 
was  formerly  conspicuous  for  his 
eminent  services  as  a  colonial  gover- 
nor.    Ibid.  1879,  A.  y. 


1^ 


liil 


Kniphts 
of  tliis  or- 
der cre- 
atorl  in 
Cauuda. 


240       PARLIAMENTARY  (;OVERNMENT  IN  THE  COLONIES. 

England  relinquished  her  control  over  these  islands,  and 
they  were  annexed  to  the  kingdom  of  Greece,  By 
additional  letters-patent  under  the  Great  Seal  of  Great 
Britain,  issued  on  December  4,  18G8,  and  May  30, 1877, 
the  order  of  St.  Michael  and  St.  George  was  enlarged 
and  extended  for  the  express  purpose  of  enabling  the 
sovereign  to  confer  distinction  upon  such  of  her  subjects 
as  "  may  have  rendered,  or  shall  hereafter  render,  extra- 
ordinary and  important  services  to  her  Majesty  as  so- 
vereign' of  the  United  Kingdom  of  Great  Britain  and 
Ireland,  within  or  in  relation  to  any  of  her  Majesty's 
colonial  possessions ;  or  who  may  become  eminently 
distinguished  therein  by  their  talents,  merits,  virtues, 
loyalty,  or  services."  The  Knights  Grand  Cross  of  this 
order  are  not  to  exceed  thirty-five  in  number;  the 
Knights  Commanders  are  not  to  exceed  one  hundred 
and  twenty  ;  and  the  Companions  are  not  to  exceed 
two  hundred.  But  princes  of  the  blood  royal  are 
constituted  extra  Knights  Grand  Cross,  and  foreign 
princes,  &c.,  honorary  members  of  their  respective 
classes." 

On  May  24,  1879,  the  anniversary  of  the  birthday 
of  her  most  gracious  Majesty,  a  special  honour  was 
conferred  upon  the  dominion  of  Canada  in  the  person 
of  the  governor-general,  in  that  the  nobleman  holding 
that  exalted  office  (the  Marquis  of  Lome)  w-as  author- 
ized by  her  Majesty  to  hold  an  investiture  of  "  the  most 
distinguished  order  of  St.  Michael  and  St.  George,"  at 
the  city  of  Montreal,  when,  by  command  of  the  queen, 
bi.v  Canadian  gentlemen,  all  of  them  being  members  of 
the  queen's  privy  council  for  Canada,  were  created,  by 
the  governor-general  in  her  Majesty's  name.  Knights 
Commanders  of  the  order.^    This  was  a  remarkable  and 


«  Col.   Rules  and  Regulations,  1879,  p.  249.     Burke,  Peerage  and 
Baronetage,  1879,  p.  1445.     Dodd,  Manual  of  Dignities,  p.  241. 
y  Canada  Official  Gazette,  May  26,  1879. 


ES. 

Is,  and 

.    «y 

Great 
,1877, 
ilarged 
nsc  the 
ubjects 
,  extra- 
'■  as  so- 
li 11  and 
ajesty's 
linently 
virtues, 
;  of  this 
er;  the 
lundred 

exceed 
yal    are 

foreign 
spective 


GRANTS  OF  HONOURS  AND  TITULAR  DISTINCTIONS.      241 

unprecedented  occurrence  in  a  colony ;  inasmuch  as 
"  for  several  centuries  the  power  of  bestowing  this 
source  of  dignity  and  honour  has  been  exclusively  con- 
fined to  the  sovereign,  and  the  lord-lieutenant  of  Ire- 
land."^ 

Since  the  confederation  of  the  British  North  Ame- 
rican provinces  into  the  dominion  of  Canada,  two  ques- 
tions have  arisen,  connected  with  the  exercise  of  the 
prerogative  of  honour ;  firstly,  as  to  whether  appoint- 
ments to  the  office  of  queen's  counsel  should  emanate 
from  the  governor-general  or  from  the  lieutenant-go- 
vernor in  the  severjxl  provinces ;  and,  secondly,  as  to 
the  proper  authority  under  which  the  great  seals,  in 
use  in  the  provinces,  should  be  appointed,  and  changed, 
from  time  to  time,  as  necessity  might  require. 

On  Jan.  4,  1872,  the  governor-general  of  Canada  for- 
warded to  the  secretary  of  state  for  the  colonies  a  report 
from  the  dominion  minister  of  justice,  requesting  the  opinion 
of  the  law  officers  of  the  Crown  as  to  whether,  —  since  the 
passincf  of  the  British  North  America  act  of  18G7,  —  it  de- 
volved upon  the  governor-general  or  upon  the  lieutenant- 
governors  to  appoint  queen's  counsel ;  and  whether  a  provin- 
cial legislature  was  competent  to  pass  an  act  empowering  the 
lieutenant-governor  to  make  such  appointments ;  and,  finally, 
as  to  how  the  question  of  precedence  or  pre-audience  should 
be  settled. 

In  his  reply,  dated  Feb.  1,  1872,  Lord  Kimberley  inti- 
mated that,  in  the  opinion  of  the  Crown  law  officers,  the 


!« 


Canadian 
questions 
alTcctiiig 
tlic  iJrcTO- 
gativo  of 
iiunour. 


Right  to 
appoint 
queen's 
counsel. 


< 


I      '  11 


''  i 


,1 '" 


* 

'-  i. 

\ 

1 

lerage  and 


'  Dodd,  Manual  of  Dignities,  p. 
217.  A  similar  instance  of  express 
delegation  from  the  sovereign  to 
bestow,  in  her  Majesty's  name,  ho- 
nours and  titular  distinctions  upon 
her  subjects,  in  a  distant  part  of  the 
empire,  is  afforded  upon  the  occa- 
sion of  the  visit  of  his  Royal  High- 
ness the  Prince  of  Wales  to  India. 
On  Jan.  1,  1870,  the  prince,  in  the 
presence  of  the  viceroy  of  India, 
held  a  flurbar  at  Calcutta,  at  which, 
acting  under  the  authority  of  a  royal 


warrant,  dated  Balmoral,  Oct.  25, 
1S75,  his  Royal  Highness,  in  the 
capacity  of  High  Commissioner,  held 
a  chapter  of  the  order  of  the  Star  of 
India,  and  invested  certain  persons, 
named  in  the  warrant  from  the 
queen,  with  the  dignities  of  Knight 
Grand  Commander,  Knight  Com- 
mander, or  Companions  of  that 
order.  For  an  account  of  the  cere- 
monial, see  Russell's  Tour  of  tlie 
Prince  of  Wales  iu  India,  pp.  370- 
375. 


16 


242       PARLIAMENTARY  GOVERNMENT  IN  TIIE  COLONIES. 


governor-general,  as  her  Majesty's  representative,  was  con- 
stitutionally competent  to  appoint  queen's  counsel,  but  that 
the  lieutenant-governor  of  a  province  had  no  such  right. 
Nevertheless,  thev  considered  that  any  provincial  legislature 
might  authorize,  by  statute,  the  lieutenant-governor  to  make 
such  appointments  ;  and  might  determine  the  right  of  prece- 
dence or  pre-audience,  in  the  provincial  courts,  between 
queen's  counsel  appointed  by  the  governor-general  or  by  the 
lieutenant-governor. 

Notwithstanding  this  correspondence,  or  possibly  in  igno- 
rance of  it,  the  lieutenant-governor  of  Ontario,  acting  upon 
the  advice  of  his  ministers,  and  witliout  previous  legislation 
on  the  subject  in  Ontario,  proceeded  to  appoint  certain  mem- 
bers of  the  provincial  bar  to'  be  queen's  counsel.  These  ap- 
pointments were  announced  in  the  Ontario  official  gazette  of 
March  17,  1872.  Shortly  afterwards,  —  upon  a  report  from 
the  dominion  minister  of  justice, — a  minute  of  council  was 
passed,  and  approved  by  the  governor-general,  setting  forth 
reasons  whicli  led  to  the  conclusion  "that,  under  the  circum- 
stances, great  doubt  must  exist  as  to  the  validity  of  tlie  com- 
missions issued  to  "  these  gentlemen.  To  remove  this  doubt, 
and  to  prevent  injurious  consequences  from  an  a[)parently 
illegal  act,  it  was  agreed  that  new  commissions,  a])i)ointing 
the  same  individuals  to  the  office  of  queen's  counsel  for  On- 
tario, should  be  issued  by  the  governor-general  under  the 
great  seal  of  Canada. 

Upon  this  decision  being  made  known  to  the  Ontario  go- 
vernment, they  protested,  by  a  minute  of  council,  a])proved 
by  the  lieutenant-governor,  against  the  proposed  action  of  the 
dominion  government ;  claiming  that  such  appointments  ap- 
pertained to  the  local  and  not  to  the  fetlera'  jiuis(li<;tion. 
They  also  declared  that  a  measure  on  this  subject  would 
shortly  be  submitted  to  the  provincial  legislature. 

The  governor-general  in  council  rej)lied,  in  a  minute  dated 
Dec.  13,  1872,  which  reiterated  the  ojiinions  previously  ex- 
pressed, and  advis(Ml  that  the  governor-general  should  not 
relin(|uish  the  proposed  exercise  of  the  royal  prerogative  ;  but 
reronimended  an  arrangement  between  the  federal  and  pro- 
vincial governments,  by  which  queen's  counsel  a])pointed  by 
the  governor-general  should  receive  propijr  status  and  posi- 
tion in  the  provincial  courts,  and  commissions  issued  under 


ES. 

IS  con- 
ut  that 
.  right, 
ishiture 
:o  make 
[  prece- 
jetween 
I'  by  the 

in  igno- 
iig  upon 
gislation 
in  mem- 
'hese  ap- 
uzette  of 
oit  from 
mcil  was 
in<r  forth 
!  circum- 
thc  com- 
lis  doubt, 
nparently 
)ointing 
for  On- 
iniler  the 

tavio  go- 
\pproved 
m  of  the 
iiunts  ap- 
isiliction. 
ct  would 

ute  dated 
Misly  ex- 
ouhl  not 
live  ;  but 
and  pro- 
■lintcd  i)y 
and  posi- 
ted under 


GRANTS  OF  HONOURS  AND  TITULAR  DISTINCTIONS.      243 

statutory  authority  by  the  lieutenant-governors  should  be 
recognized  in  dominion  courts.'* 

Accordingly,  on  March  29,  1873,  two  acts  passed  by  the 
Ontario  legislature  were  assented  to,  in  the  queen's  name,  by 
the  lieutenant-governor.  One  declared  that  it  was  lawful  for 
the  lieutenant-governor,  under  the  great  seal  of  the  province, 
to  appoint  from  among  the  members,  of  the  Ontario  bar  such 
persons  as  he  may  a})prove,  to  be,  during  pleasure,  "provin- 
cial officers  under  the  name  of  her  Majesty's  counsel  learned 
in  the  law  for  the  province."  The  other  declared  it  to  be 
"  lawful  for  the  lieutenant-governor,  by  letters-patent  under 
the  great  seal  of  Ontario,  to  grant  to  any  member  of  the  bar 
a  patent  of  precedence  in  the  said  courts." ''  Legislation  to 
the  same  purport  took  place  in  the  province  of  Quebec  on 
Dec.  24,  1872,«  and  in  Nova  Scotia  in  1874.'i 

Meanwhile,  in  conformity  with  the  minute  of  council  above 
mentioned,  the  governor-general  was  pleased  to  appoint,  on 
Dec.  13,  1872,  the  gentlemen  previously  appointed  by  the 
Ontario  government,  to  be  queen's  counsel  in  and  for  the 
province  of  Ontario.  And  on  Dec.  18  other  members  of 
the  Ontario  bar  received  the  same  distinction  from  the  go- 
vernor-general. On  April  2,  1873,  various  members  of  the 
bar  in  the  provinces  of  Quebec,  New  Brunswick,  and  Hritish 
Columbia,  were  appointed  to  a  similar  rank  and  position  by 
his  Excellency  the  governor-general. 

Acting  under  the  authority  of  statutes  passed  by  the  local 
legislatures  as  aforesaid,  the  lieutenant-governors  in  the  seve- 
ral provinces  directed  the  issue  of  letters-patent,  under  the 
provincial  great  seals,  conferring  the  distinction  and  prece- 
dence of  queen's  counsel  within  the  province  upon  certain 
members  of  the  provincial  bar.  In  some  instances,  the  same 
individuals  received  patents  from  the  governor-general  and 
from  a  lieutenant-governor. 

In  due  course,  this  vexed  question  was  submitted  to  the 
consideration  of  the  courts  of  law.  'J'he  issue  was  first  raised 
in  Nova  Scotia.  By  a  Nova  Scotia  act  of  1874  (c.  20),  the 
lieutenant-governor  was  enq)owered,  by  letters-patent  under 


•  Canada  Sess.  Papers,  1873,  no.  «  Qiu'hoo  Statutes.  W  Vict.  c.  1:^. 

no.  ''  Nova  Scotia  ISLuLutcs,  '<i7  Vict. 

b  Ontario  Statutes,  30  Vict.  cc.  cc.  20  and  21. 
3  and  4. 


r  '  ■  r 

i  1: 


1  i 


>      ( 


II' 


244       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


Cuiuidii. 


I      I 


Appoint-  the  great  seal  of  the  province,  to  appoint  members  of  the 
qlu'un"/  provincial  bar  to  be  queen's  counsel  in  and  for  the  province, 
eoiinsi'i  in  And  by  c.  21  of  the  same  session,  the  lieutenant-governor 
was  authorized  to  assign  patents  of  precedence  to  the  several 
queen's  counsel  in  Nova  Scotia  who  had  been  appointed  since 
confederation.  Under  this  act,  on  May  26,  1876,  letters- 
patent  were  issued,  sealed  by  the  great  seal  of  the  province, 
appointing  additional  queen's  counsel,  and  establishing  a  new 
order  of  precedence,  which  gave  precedence  nnd  pre-audience 
to  certain  persons  above  Mr.  J.  N.  Ritchie,  Q.  C,  who  were 
not  previously  entitled  thereto. 

Mr.  Ritchie  had  been  appointed  to  the  rank  of  queen's 
counsel,  in  1872,  by  a  patent  from  the  governor-general.  He 
therefore  appealed  to  the  Supreme  Court  of  the  province  for 
a  recognition  of  his  rank  and  precedence  before  the  gentle- 
men who  had,  as  he  contended,  unlawfully  obtained  prece- 
dence over  him,  by  virtue  of  the  letters-patent  aforesaid. 
Mr.  Ritcliie  protested  against  tlie  patent  of  precedence 
granted  to  these  gentlemen,  on  the  grounds,  firstly,  that  the 
Nova  Scotia  acts  of  1874,  cc.  20  and  21,  were  ultra  vires^  and 
the  appointments  thereunder  invalid  ;  and,  secondly,  that  the 
act  to  enable  tlie  governor  in  council  to  regulate  the  prece- 
dence of  queen's  counsel  could  not  lawfully  be  construed 
retrospectively,  so  as  to  interfere  with  his  precedence  by 
virtue  of  his  appointment  in  1872. 

The  matter  of  precedence  was  investigated  by  the  Supreme 
Court  of  Nova  Scotia.  Judgment  was  rendered  in  Decem- 
ber, 1876.  The  court  refused  to  declare  that  the  provincial 
statutes  of  1874  were  ultra  vires^  inasmuch  as  her  Majesty, 
through  her  secretary  of  state,  had  suggested  the  passing  of 
such  acts,  and  afterwards,  through  the  lieutenant-governor, 
had  given  her  assent  to  the  same  ;  thereby  authorizing,  at  any 
rate  "  prospoctivoly,  after  the  passing  of  the  act,  her  lieute- 
nant-goYornor  of  this  province,  to  exercise  her  prerogative 
right,  to  the  extent  in  which  it  is  necessarily  conferred  on 
that  high  olTiccr  by  the  statute."  But  as  the  precedence 
claimed  by  the  gontlomon  who  had  received  provincial  ap- 
pointments over  Mr.  Ritchie  had  been  declared  to  be  retro- 
spective, contrary  to  the  provisions  of  the  statute,  the  court 
decided  that  their  claim  was  unauthorized  and  invalid.  The 
majority  of  the  court  v/ere  also  of  opinion  that  the  wrong 


GRANTS  OF  HONOURS  AND  TITULAR  DISTINCTIONS.     245 

seal  had  been  made  use  of,  for  the  purpose  of  authenticating 
the  patents  issued  by  the  lieutenant-governor.*  But  this  is 
a  distinct  question,  which  will  be  presently  considered. 

In  1878,  the  whole  matter  was  brought  before  the  Supreme 
Court  of  the  dominion  upon  an  appeal. 

On  Nov.  4,  1879,  this  court  gave  judgment.  They  dis- 
missed the  appeal  with  costs,  thereby  confirming  to  Mr. 
Ritchie,  Q.  C,  his  precedence,  by  virtue  of  his  appointment 
in  1872,  under  the  great  seal  of  the  dominion. 

A  majority  of  the  court,  moreover,  expressed  a  de-  Lioute- 
cided  opinion  that  the  sole  right  of  conferring  the  rank  v'enS 
and  dit^nity  of  queen's  counsel  within  the  dominion  of  "<>tt'»'"- 

o       J  I  ^  potent  to 

Canada  appertained  to  the  queen,  or  to  her  direct  re-  appoint 
presentative,  the  governor-general.  That  the  British  Jouulsd. 
North  America  act,  1867,  does  not,  either  expressly  or 
by  inference,  divest  her  Majesty  of  this  branch  of  her 
prerogative,  or  enable  the  lieutenant-governors  of  the 
provinces,  either  with  or  without  an  authority  derived 
from  the  provincial  legislatures,  to  exercise  tlie  same. 
That  authority  to  exercise  this  prerogative  could  not 
he  conveyed  by  a  mere  despatch  from  a  secretary  of 
state,  but  only  by  warrant,  under  the  sovereign's  sign- 
manual.  Wherefore  the  acts  of  the  Nova  Scotia  legis- 
lature (and,  by  the  same  rule,  the  acts  of  the  other  pro- 
vincial legislatures),  in  so  far  as  they  assume  to  invest 
the  lieutenant-governor  with  power  to  appoint  to  the 
rank  or  dignity  of  queen's  counsel,  are  vlfra  vires  and 
void.  For  the  queen  is  not  an  integral  part  of  the  legis- 
latures of  the  provinces,  as  she  is  expressly  declared 
to  be  of  the  dominion  parliament,  by  tlie  British  North 
America  act,  and  therefore  no  provincial  statute  can 
impair  or  affect  her  Majesty's  right  to  the  exclusive 
exercise  of  all  her  prerogative  powers.' 


•  Russoll  and  Cheslpy,  Nova  Sco-  "  Lepral  News,"  vol.  ii.  p.  373. 
tia  Rt'p.  vol.  ii.  p.  4'^().  See  also,  The  effect  of  this  decision  was  tu 
Canada  Sess.  TaiHTs,  1877,  no.  80.  annul  the  apiwintnientof  about  one 

*  Lenoir    v.  llitchie.      Montreal  hundred  queen's  counsel  unlawfully 


I 


11 


e.^KtszL'ft  •«*--  ' 


\    i 


Great  seal 
of  Nova 
Scotia. 


i' 


246       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

This  admirable  judgment  entirely  accords  with  the 
constitutional  doctrine  propounded  at  the  beginning 
of  this  section,  which  reserves  to  the  sovereign,  or  to 
her  direct  and  immediate  representative,  the  adminis- 
tration of  the  prerogative  of  honour. 

As  has  been  already  intimated,  in  the  case  of  Lenoir 
V.  Ritcliie,  the  further  question  of  the  validity  of  the 
existing  great  seal  of  the  province  of  Nova  Scotia  was 
raised ;  and  the  use  of  the  old  seal,  for  the  purpose  of 
authenticating  the  appointment  of  queen's  counsel,  in- 
stead of  the  new  seal,  appropriate  to  Nova  Scotia  as  a 
province  of  the  dominion,  was  declared  by  a  majority 
of  the  Supreme  Court  of  Nova  Scotia  to  have  been 
illegal. 

The  uncertainty  of  the  law,  and  the  importance  of 
obtaining  a  clear  and  speedy  decision  upon  this  ques- 
tion of  the  seals,  had  previously  induced  the  govern- 
ment of  Nova  Scotia  to  request  the  intervention  of  the 
imperial  authorities,  and  the  passing  of  an  imperial 
statute,  to  remove  all  doubts  upc  \  the  subject.  This 
request  was  made  known  to  the  governor-general  by 
a  despatch  from  Lieutenant-Governor  Archibald,  dated 
March  28,  1877. 

Meanwhile,  the  imperial  government  itself  had  de- 
cided, upon  the  advice  of  the  law  officers  of  the  Crown 
that,  inasmuch  as  the  new  seal  had  not  been  formally 
and  officially  introduced  into  Nova  Scotia,  the  use  of 
the  old  seal  of  the  province  was  not  irregular;  and 
that  any  legislation  required  to  authorize  a  change 
of  seal,  or  to  validate  supposed  irregularities,  should 
emanate  from  the  dominion  parliament.  So,  in  1877, 
a  dominion  act  was  passed  authorizing  the  lieutenimt 
governor  in  council,  in  each  and  all  of  the  provinces, 

appointi'd  by  tlie  liputenant-jjover-  the    Ipadinjj    lawyers    and    judijes 

iiors  ill  llic  »'arioiis  provinces  of  tl>e  tlironijlinut  Canada.     Ihiil.  pp  JJGU, 

dominion.      The   decision    was   re-  3L>2,  4Uii. 
ceived  with   much  satisfaction  by 


GRANTS  OF  HONOURS  AND  TITULAR  DISTINCTIONS.      247 


to  change  the  great  seal  of  the  province  and  to  validate 
the  past  use  of  the  old  seal  in  Nova  Scotia.^  Statutes  to 
this  eftect  were  thereupon  passed  by  the  Nova  Scotia 
legislature  without  delay.** 

The  interest  which  attaches  to  this  question  from  a 
constitutional  poin^-  of  view,  and  its  bearing  upon  the 
royal  prerogative,  which  we  are  new  considering,  will 
justify  a  fuller  mention  of  the  circumstances  which  led 
to  this  settlement  of  the  difficulty. 

On  Oct.  14, 1868,  the  colonial  secretary  (the  Duke  of  Buck- 
ingham) forwarded  to  the  governor-general  of  Canada  (Lord 
Monck)  her  Majesty's  warrant  granting  and  assigning  certain 
armorial  bearings  to  be  hereafter  used  on  seals,  shields,  ban- 
ners, flags,  and  otherwise  in  and  hy  the  several  provinces 
forming  part  of  the  dominion  of  Canada,  "for  the  greater 
honour  and  distinci'^i  of  the  said  provinces  ;"  and  declaring 
that  the  said  united  provinces  shall  use  "a  Great  Seal  of 
Canada "  which  shall  be  composed  of  a  combination  of  the 
arms  of  the  particular  provinces. 

On  May  8,  18G9,  the  colonial  secretary  transmitted  to  the 
governor-general  five  seals,  to  be  used  by  the  dominion  of 
Canada  and  by  the  four  provinces  composing  the  same.  Also, 
the  queen's  warrant,  under  her  royal  sign-manual,  directing 
the  use  of  the  said  seals,  and  requiring  that  the  old  seals, 
heretofore  in  use,  should  be  returned,  in  order  that  they  might 
be  defaced  by  her  Majesty  in  council. 

On  July  2,  1800,  the  governor-general  applied  to  the  secre- 
tary of  state  for  instructions  for  his  guidance  in  respect  to 
the  four  provincial  seals.  He  enclosed  a  memorandum  from 
the  minister  of  justice,  which  raised  the  question  whether  it 
was  not  within  the  competency  of  the  lieutenant-governors 
in  council  (under  the  one  hundred  and  thirty-sixth  section  of 
the  British  North  America  act)  to  appoint  and  direct  the  great 
seals  to  be  used  in  the  several  provinces  of  the  dominion  ;  the 
more  so  as  these  lieutenant-governors  were  now  appointed  by 
the  governor-general  in  council  and  not  by  the  queen. 

In  his  reply,  dated  Aug.  23,  1869,  the  colonial  secretary 


'  Canada  Act  40  Vict.  c.  3. 


»>  N.  S.  Acts  40  Vict.  cc.  1  and  2. 


1- 

■'!' 

■  ■ 

•  ■„ 

K      1 

j 

■'t 

• 
P 

i 

■    i 


\''   l\ 


248       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


Iii'l 


Nova 
Si-otia 
great  seal 
case. 


expressed  his  conviction  that  the  riglit  of  her  Majesty  exclu- 
sively to  order  and  to  change  at  will  the  great  seals  of  the  pro- 
vinces was  as  unquestionable  as  her  right  to  determine  the  great 
seal  of  the  dominion,  which  had  not  been  disputed  ;  and  that, 
as  this  right  was  in  existence  before  the  passing  of  the  British 
North  America  Jict,  it  can'iot  be  deemed  to  have  been  taken 
away  by  implication,  to  be  inferred  from  the  one  hundred  and 
thirty-sixth  section  aforesaid,  which  is  in  terms  expressly  con- 
fined to  the  provinces  of  Ontario  and  Quebec.  This  section, 
moreover,  may  be  construed  as  prescribing  the  proper  mode  of 
introducing  any  alteration  of  the  seals  in  use  in  those  provinces; 
namely,  by  proclamation,  or  by  order  of  "  the  lieutenant  gover- 
nor in  council,"  and  not  as  limiting  the  queen's  prerogative  to 
appoint  and  direct  the  seals  to  be  used.'  If,  on  the  contrary, 
this  clause  is  assumed  to  give  direct  and  sole  power  to  the 
lieutenant-governors  of  Ontario  and  Quebec  in  council  to 
alter  the  seals  of  those  provinces  at  pleasure,  the  same  right 
should  be  conceded  to  the  lieutenant-governors  of  New  Bruns- 
wick and  Nova  Scotia;  and  this  authority  should  be  conferred 
either  by  an  imperial  statute  or  by  local  legislation,  to  which 
the  consent  of  the  Crown  should  first  be  given. 

Accordingly  on  Nov.  16,  1860,  the  dominion  government 
directed  that  the  great  seals  for  Nova  Scotia  and  New  Bruns- 
wick should  be  transmitted  to  the  lieutenant-governors  of 
those  provinces,  with  instructions  to  give  effect  to  the  royal 
pleasure  by  the  adoption  of  the  same  for  use  in  their  govern- 
ments. The  new  seals  for  Ontario  and  Quebec  were  au- 
thorized to  be  forwarded  in  like  manner,  with  copies  of  the 
correspondence  on  the  subject,  so  as  to  afford  these  govern- 
ments "  the  opportunity  of  adopting  such  seals,  should  they 
think  proper  to  do  so." 

The  executive  council  of  Nova  Scotia,  however,  preferred 
their  old  seal  to  a  new  one.  They  therefore  adopted  a  minute, 
which  was  forwarded  to  the  governor-general  for  the  purpose 
of  transmission  to  her  Majesty's  government,  wherein,  while 
freely  admitting  the  right  of  the  queen  to  change  and  alter 


'  The  clause  is  as  follows :  "  TTn-  desiprn,  .as  those  used  in  the  provinces 

til  altered  by  the  lieutenant-plover-  of  l'p]>er  (Canada  antl  Lower  Cana- 

nor  in  council,  the  great  seals  of  da  respectively,  before  their  union 

Ontario    and    (Jnebec    respectively  as  the  province  of  Canada." 
shall  be  the  same,  or  of  the  same 


GRANTS  OF  HONOURS  AND  TITULAR  DISTINCTIONS.      249 

the  provincial  seal  at  pleasure,  they  ask/;d  leave  to  retain  in 
use  their  old  seal,  instead  of  adopting  a  new  one.  They 
afterwards  craved  permission  from  the  Crown  to  pass  an  act 
to  sanction  the  continued  use  of  the  old  seal,  but  authorizing 
the  lieutenant-governor  to  alter  and  appoint  the  use  of  a  new 
great  seal  in  future.  The  secretary  of  state  for  the  dominion 
acknowledged  the  receipt  of  this  minute,  but  made  no  reply 
to  its  request. 

For  several  years  afterwards,  the  question  of  the  seals  re- 
mained in  abeyance  in  Nova  Scotia.  At  length,  on  March 
28,  1877,  the  lieutenant-governor  wrote  to  the  dominion 
secretary  of  state,  to  call  attention  to  a  new  difficulty  which 
had  arisen  out  of  this  matter.  By  two  acts,  passed  in  1874, 
the  lieutenant-governor  in  council  was  empowered  to  appoint 
queen's  counsel,  and  to  regulate  precedence  at  the  provincial 
bar.  He  had,  accordingly,  issued  certain  patents  of  precedence 
under  the  great  seal  of  the  province.  The  Supreme  Court  at 
Halifax,  however,  in  a  judgment  .already  referred  to,'  impugned 
the  validity  of  this  proceeding,  partly  on  the  ground  that  the 
seal  used  to  authenticate  these  patents  was  the  old  province 
seal,  and  not  the  new  seal  directed  to  be  made  use  of  by  the 
queen's  warrant  of  May  7,  1869.  The  court  were  of  opinion 
that  the  use  of  the  old  seal  was  no  longer  legal,  and  that  "  the 
new  seal,  after  its  delivery  to  the  lieutenant-governor  in  1869, 
became,  and  is  now,  the  great  seal  of  Nova  Scotia,  and  the 
only  one." 

With  a  view  to  dispose  of  this  difficult  question,  the  pro- 
vincial government  requested  the  dominion  government  to 
forward  an  address  to  the  queen,  from  the  Council  and  Assem- 
bly of  Nova  Scotia,  to  solicit  the  passing  of  an  imperial  sta- 
tute for  its  solution.  But,  before  this  request  could  be 
complied  with,  a  despatch  was  received  by  the  governor-ge- 
neral from  the  colonial  secretary,  dated  March  29,  1877, 
which  stated  that  the  law  officers  of  the  Crown  were  of  opi- 
nion that  the  queen's  warrant,  of  May  7,  1869,  above  men- 
tioned, was  directory  and  not  imperative,  so  that  the  non- 
observance  of  its  injunctions  did  not  impair  the  validity  of 
documents  which  had  been  authenticated  by  means  of  the 
old  seal,  the  use  of  which  was  not  abolished,  until  the  new 


i  See  ante,  p.  244. 


B   i 


Ik 


r 


''•'41 


11 

y    ; '     m 


250       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


Nova 
Scotia 
great  seal 
case. 


i 


seal  was  formally  introduced ;  that  while  the  failure  to  com- 
ply with  the  directions  of  the  royal  warrant  in  regard  to  the 
introduction  of  the  new  seal  might  properly  be  condoned 
by  imperial  authority,  yet,  under  the  existing  circumstances, 
and  having  regard  to  the  provisions  of  the  British  North 
America  act,  it  would  be  more  advisable  to  have  recourse  to 
dominion  legislation  for  this  purpose. 

Tliese  opinions  were  ajjproved  by  the  governor-general  in 
council ;  and  the  lieutenant-governor  of  Nova  Scotia  was 
notified  thereof.'' 

Immediately  afterwards,  as  has  been  already  explained,  the 
dominion  parhament  passed  an  act,  to  remove  doubts  on  this 
subject,  "  so  far  as  the  parliament  of  Canada  may  have  power 
to  .et  i'i  tie  p'-emises,"  and  to  declare  that  "-the  lieutenant- 
go  or  rf  eacli  province  in  council  has  the  power  of  appoint- 
ing 1  o  'liering  from  time  to  time  the  great  seal  of  the 
province,  'i  h, ,  act  also  declared  that  the  use,  heretofore,  of 
the  old  seal,  in  Nova  Scotia,  should  be  deemed  to  have  been 
valid,  "  notwithstanding  any  doubt  which  may  exist  as  to 
such  seal  being  the  great  seal."  ^ 

On  their  part,  the  local  legislature  of  Nova  Scotia  lost  no 
time  in  acting  upon  these  conclusions.  In  the  same  year,  and 
without  waiting  (as  they  should  have  done,  according  to  the 
opinion  of  the  English  Crown  law  officers)  for  dominion 
legislation  on  the  subject,  they  passed  two  statutes,  —  one 
"  to  empower  the  lieutenant-governor  of  the  province  in  council 
to  alter  and  change  the  great  seal  of  tlie  province  from  time  to 
time ;  "  and  the  other,  "  to  ratify  and  confirm  all  acts  and 
proceedings  heretofore  had  and  done  under  the  great  seal " 
previously  in  use  in  this  province,  from  the  commencement 
of  the  year  1869  until  the  said  great  seal  shall  have  been 
changed  by  order  of  the  governor  in  council.'" 

Overlooking  the  irregularity  attending  tlie  passing  of  these 
acts,  before  due  authority  for  such  enactments  had  been 
given  by  the  dominion  parliament,  they  were  permitted  to 
remain  in  operation,  and  thus  to  dispose  effectually  of  a  ques- 
tion which  had  continued  in  dispute  for  nearly  ten  years. 


•^  Canada  Sess.  Papers,  1877,  no.         "Nova  Scotia  Statutes  40  Vict. 
80.  cc.  1  and  2. 

»  Canada  Act  40  Vict,  c  3. 


ADMINISTRATION  OF  THE  PREROGATIVE  OF  MERCY.       251 


Inasmuch  as  a  majority  of  tlie  judges  of  the  Supremo 
Court  of  Nova  Scotia,  in  giving  judgment  in  the  case  of  Le- 
noir V.  Ritchie,  had,  as  we  have  seen,  dwelt  at  considerable 
length  upon  the  question  of  the  validity  of  the  seal  used  to 
authenticate  the  patents  issued  by  the  lieutenant-governor 
to  confer  the  rank  of  queen's  counsel  upon  certain  lawyers 
in  the  province,  and  as  it  had  been  held,  by  a  majority  of  the 
judges  of  that  court,  that  the  seal  affixed  to  these  patents  was. 
not  the  true  great  seal  of  Nova  Scotia,  —  this  question  necej- 
sarily  came  under  the  notice  of  the  Supreme  Court  of  the  do- 
minion, in  deliberating  upon  the  appeal  from  the  judgment  of 
the  Nova  Scotia  court,  in  this  case.  The  judges  of  tho 
Supreme  Court  of  Canada  did  not,  however,  deem  it  of  con- 
sequence to  consider  this  question.  They  were  evidently  of 
opinion  that  it  had  been  duly  settled  by  competent  authority, 
and  that  no  judicial  interposition  was  required,  either  to  ex- 
plain the  law  or  to  regulate  its  operati    .. 


tivo  of 
mercy. 


Imperial  Dominion  exercisable  over  Self-governing  Colonies  : 
h.  Bi/  the  administration  of  the  jt>3  .rogative  of  mercy. 

In  the  official  rules  and  regUidtions  for  her  Majesty's  prprosa. 
colonial  service,  it  is  stated  that  tlie  powers  of  every 
officer  administering  a  colonial  government  are  con- 
ferred, and  his  duties  for  the  most  part  defined,  in  her 
Majesty's  commission  and  the  instructions  with  which 
he  is  furnished.  But  that,  subject  to  the  special  law  of 
each  colony,  it  is  customary  that  a  governor  should  be 
"  empowered  to  grant  a  pardon  or  respite  to  any  crimi- 
nal convicted  in  the  colonial  courts  of  justice."  And 
"  he  may  pardon  persons  imprisoned  in  colonial  gaols 
under  sentence  of  a  court-martial ;  but  this  is  not  to  be 
done  without  consulting  the  officer  in  command  of  the 
forces."  Furthermore,  "he  has  in  general  the  power 
of  remitting  any  fines,  penalties,  or  forfeitures,  which 
may  accrue  to  the  queen  ;  but  if  the  fine  exceeds  fifty 
pounds,  he  is,  in  some  colonies,  only  at  liberty  to  sus- 


I 


i 


\  i 


252       PABLLVMENTARY  GOVERNMENT  IN  TIIE  COLONIES. 


\f: 


1     I 


t 


pend  the  payment  of  it  until  her  Majesty's  pleasure 
can  be  known."  " 

It  is  also  provided  that  "  no  judge  presiding  on  a 
criminal  trial  must,  upon  any  account,  fail  to  take  notes 
of  the  evidence  adduced,  and  no  capital  sentence  must 
be  executed  until  the  governor  of  the  colony  shall  have 
perused  those  notes." 

"  In  general  no  reference  in  criminal  cases  is  to  be 
made  from  the  government  of  any  colony  to  this  coun- 
try, with  a  view  to  the  confirmation  or  remission  of 
sentences  pronounced  by  the  colonial  courts.  But  her 
Majesty's  government  will  be  ready  to  afford  any  in- 
formation, instructions,  or  advice,  for  which  the  governor 
may  think  it  necessary  to  apply,  whenever  any  ques- 
tion may  arise  on  any  criminal  proceeding  on  which 
there  may  be  any  special  and  adequate  motive  for  in- 
voking the  interference  of  her  Majesty's  government 
in  this  country.  Whenever  a  capital  sentence  shall 
have  been  executed,  a  report  of  it  must  be  transmitted 
to  the  secretary  of  state."  ° 

By  these  regulations,  direct  and  exclusive  authority  is 

conferred  upon  governors  of  British  colonies  holding 

EaUo^   commissions  from  the  Crown  to  administer  the  royal 

prerogative  of  pardon  to  any  criminal  convicted  in  any 

court  of  justice  in  the  colony. 

More  explicit  and  detailed  directions  on  this  subject 
are  embodied  in  the  royal  commission  of  every  colonial 
governor,  and  in  the  instructions  accompanying  the 
same.  These  directions  have  been  modified  of  late 
years,  particularly  in  the  case  of  colonies  in  the  enjoy- 
ment of"  responsible  government,"  and  to  a  still  greater 
extent  in  reference  to  the  dominion  of  Canada. 


Exercise 
of  this 
preroga 

y 

go 
vernors 


:.',■ 


"  Col.    Reg.    1879,   sees.  22-2,'>.  c.  p.  c.  p.  71;  The  Queen  v.  Burah, 

Forsyth,   Const.    Law,   pp.    7.5-82,  Appeal  Cases,  vol.  iii.  p.  800. 
460.     For  the  special  law  in  India,  °  Col.  Reg.  1879,  sees.  408,  407. 

Bee   Lyon's  Law  of  India,  vol.  i.  Circular  Despatch  of  Nov.  14,  1877. 


lES. 

leasure 


g  on  a 
:e  notes 
ze  must 
ill  have 

is  to  be 
is  coun- 
^sion  of 
But  her 
any  in- 
;overnor 
\y  ques- 
n.  which 
e  for  in- 
3rnmont 
ce  shall 
ismitted 

liority  is 
holding 
le  royal 
in  any 

subject 
colonial 
ing  the 

of  late 
|e  enjoy- 

great^er 


)>.  Burah, 
890. 
408,  407. 
14,  1877. 


governors. 


ADMINISTRATION  OF  THE  PREROGATIVE  OF  MERCY.       253 

The  revised  instructions  applicable  to  self-governing 
colonies  in  general,  are  to  be  found  in  the  letters-patent 
and  royal  instructions  issued  to  the  governor  of  South 
Australia,  on  April  28,  1877. 

By  these  official  instruments,  the  governor  is  author-  instmc- 
ized  and  empowered  by  her  Majesty  "  as  he  shall  see  t'lloRui-'^ 
occasion,  in  our  name  and  on  our  behalf,  when  any  crime  '''^"'^^'^  "^ 
has  been  committed  within  our  said  colony,  or  for 
which  the  offender  may  be  tried  therein,  to  grant  a 
pardon  to  any  accomplice  in  such  crime  who  shall  give 
such  information  as  shall  load  to  the  conviction  of  the 
principal  offender,  or  one  of  such  offenders  if  more  than 
one  ;  and,  further,  to  grant  to  any  offender  convicted  in 
any  court,  or  before  any  judge,  or  other  magistrate, 
within  our  said  colony,  a  pardon  either  free  or  subject 
to  lawful  conditions ;  or  any  respite  of  the  execution 
of  the  sentence  passed  on  such  offender,  for  such  period 
as  to  our  said  governor  may  seem  fit ;  and  to  remit  any 
fines  or  forfeitures  due  or  accrued  to  us  in  respect 
thereof;  provided  always,  that  our  said  governor  shall 
in  no  case,  except  where  the  offence  has  been  of  a  politi- 
cal nature  unaccompanied  by  any  other  grave  crime, 
make  it  a  condition  of  any  pardon  or  remission  of 
sentence  that  the  offender  shall  absent  himself,  or  be 
removed  from  our  said  colony." 

The  twelfth  section  of  the  draft  of  instructions  ac- 
companying the  letters-patent  aforesaid,  further  pro- 
vides that  the  governor  shall  call  upon  the  judge 
presiding  at  the  trial  of  any  offender  who  may  be  con- 
demned to  suffer  death  by  the  sentence  of  any  court 
within  the  said  colony,  to  make  to  him  a  written  report 
of  the  case  of  such  offender,  and  such  report  shall  be 
taken  into  consideration  by  the  governor  at  the  next 
meeting  of  the  executive  council,  where  the  judge  may 
be  specially  summoned  to  attend  with  his  notes  ;  "  and 
our  said  governor  shall  not  pardon  or  reprieve  any  such 


'     ( \ 


;t 


l 


m 


I 

W.h 


ir- 


An  act  of 
clemency, 
not  of  jii- 
tlic'ial  au- 
thority. 


254       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

offender  as  aforesaid,  unless  it  shall  appear  to  him  expe- 
dient so  to  do,  upon  receiving  the  advice  of  our  said 
executive  council  tlierein  ;  but  in  all  such  cases  he  is  to 
decide  either  to  extend  or  to  withhold  a  pardon  or 
reprieve,  according  to  his  own  deliberate  judgment, 
whether  the  members  of  our  said  executive  council 
concur  therein  or  otherwise  ;  entering,  nevertheless,  on 
the  minutes  of  our  said  executive  council  a  minute  of 
his  reasons  at  length,  in  case  he  should  decide  any  such 
question  in  opposition  to  the  judgment  of  the  majority 
of  the  members  thereof"  •* 

In  administering  the  prerogative  of  mercy,  a  governor 
in  council  does  not  act  as  a  court  of  appeal  in  criminal 
cases.  For  though  in  exercising  the  royal  prerogative 
the  governor  may  remit  a  sentence,  he  does  not  techni- 
cally reverse  it,  nor  by  his  action  in  any  way  pronounce 
it  wrong.  This  he  could  only  do  after  hearing  an 
appeal  from  the  finding  of  the  court,  if  there  were  pro- 
vision for  such  an  appeal.  The  act  of  pardoning  a 
sentenced  criminal  is  one  of  pure  clemency :  it  is  in  no 
respect  judicial.  And  not  only  in  capital  cases,  where 
the  course  of  procedure  to  be  taken  by  the  governor  is 
prescribed  by  the  royal  instructions,  but  in  all  cases 
where  clemency  is  sought  at  his  hands,  a  governor 
would  do  well  to  consult  informally  those  who  could 
best  assist  his  judgment ;  more  especially  the  crown 
prosecutor  and  tlie  judge  who  has  tried  the  case,  whose 
advice  would  doubtless  be  readily  afforded  when  thus 
solicited.  But  judges  should  not  be  required  to  report 
beforehand  upon  every  case  wherein  they  have  passed 
sentence,  as  that  would  place  both  the  judges  and  the 
governor  in  an  untenable  and  undesirable  position.^ 

The  independent  authority  which  is  conferred  upon 


P  South    Australia    Pari.    Proc.     iiarvon)  to  Governor  Weld,  of  Tas- 
1877,  vol.  iii.  no.  !0!>.  mania.     Tasni.  Log.  Couu.    Jour. 

'»  Secretary   of  state  (Lord  Car-    1878,  appx.  no.  30,  p.  6. 


seen 


i 


ES. 

expe- 
Lir  said 
le  is  to 
ion  or 
lament, 
council 
[ess,  on 
lute  of 
ly  such 
lajority 

)vernor 
riminal 
ogative 
techni- 
»nounce 
ring  an 
3 re  pro- 
ving a 
is  in  no 
,  where 
em  or  is 
11  cases 
overnor 
o  could 
3  crown 
3,  whose 
len  thus 
o  report. 
e  passed 
and  the 
ion.'i 
ed  upon 

1(1,  of  Tas- 
l)uii.   Jour. 


ADMINISTRATION  OF  THE  PREROGATIVE  OF  MERCY. 


255 


tivc  m 
self-^ro- 

coloiiiua. 


governors  by  their  commission  and  instructions  to  de- 
termine absolutely,  whether  to  grant  or  to  withhold  the 
royal  clemency  to  criminal  offenders,  irrespective  of  the 
opinions  expressed  or  advice  given  by  their  responsible 
ministers,  has  given  rise  in  repeated  instances,  to 
complaints,  as  being  a  proceeding  at  variance  with 
the  principle  of  local  self-government,  and  with  the 
responsibility  of  ministers,  whose  advice  the  governor 
is  required  to  ask,  but  is  not  obliged  to  follow. 

With  a  view  to  allay  dissatisfaction,  and  to  define 
with  greater  precision  the  constitutional  practice  which  Exorciso 
should  be  observed  in  cases  of  this  kind,  her  Majesty's  prtn,«a- 
secretary  of  state  for  the  colonies  (Lord  Carnarvon) 
addressed  a  circular  despatch  to  the  governors  of  all 
the  Australian  colonies  on  this  subject,  on  May  4, 1875. 

This  despatch  proceeds  to  state  '•  that  it  should  be 
understood  that  no  capital  sentence  may  be  cither 
carried  out,  commuted,  or  remitted,  without  the  con- 
sideration of  the  case  by  the  govornor  and  his  ministers, 
assembled  in  executive  councu.  A  minor  sentence 
may  be  commuted  or  remitted  by  the  governor  after 
he  has  duly  considered  the  advice  either  of  his  ministers 
collectively,  or  of  the  minister  more  immediately 
responsible  for  matters  connected  with  the  administra- 
tion of  justice."  All  such  advice,  however,  \v  lether 
tendered  in  council  or  otherwise,  should  be  in  writing. 
Upon  receiving  the  same,  the  governor  "  has  to  decide 
for  himself  how  he  will  act."  "  Under  a  system  of 
responsible  government,  he  will  allow  greater  weight 
to  the  opinion  of  his  ministers  in  cases  affecting  the 
internal  administration  of  the  colony,  than  in  cases  in 
which  matters  of  imperial  interest  or  policy,  or  the 
interests  of  other  countries  or  colonies  are  involved." 
Nevertheless,  under  all  circumstances,  *'  it  is  true  that 
a  governor  may  (and  indeed  must,  if  in  his  judgment  it 
seems  right)  decide  in  opposition  to  the  advice  tendered 


^     < 


Ml 


:1' 

.I'i 


I  (II 


I  i 


:     \ 


\ 


256       PARLIAMENTARY  GOVERNMENT  IN  TIIE  COLONIES. 


'X- 


m 

J 

1 

j! 

f' 

'  s 

1 ' 

1 

'  1 

'1 

h 

t 

i'\ 

\ 

i 

1- 

f'    !i 

ti 

!) 

to  him.  But  the  ministers  will  have  absolved  them- 
selves of  their  responsibility,  and  though  in  an  extreme 
case,  —  which,  for  the  sake  of  argument,  may  be  stated, 
although  it  is  not  likely  to  arise  in  practice, —  [the 
local]  parliament,  if  it  disapproves  the  action  taken, 
may  require  the  ministers  to  resign  ;  either  on  the 
ground  that  they  tendered  wrong  advice,  or  that  they 
failed  to  enforce  recommendations  deemed  to  be  right. 
I  do  not  think  the  great  principle  of  parliamentary 
responsibility  is  impaired  by  this  result.  On  the  other 
hand,  a  governor  who,  by  acting  in  opposition  to  the 
advice  of  his  ministers,  has  brought  about  their  resigna- 
tion, will  obviously  have  assumed  a  responsibility  for 
which  he  will  have  to  account  to  her  Majesty's  govern- 
ment." 

The  colonial  secretary  proceeds  to  state  that  he  knows 
it  has  been  argued,  "  that  ministers  cannot  under- 
take to  be  responsible  for  the  administration  of  aflairs 
unless  their  advice  is  necessarily  to  prevail  on  all  ques- 
tions, including  those  connected  with  the  prerogative 
of  pardon.  Hut  I  am  led  to  believe  that  this  view  does 
not  meet  with  general  accep;  'uce,  and  there  is  at  all 
events  good  reason  why  it  should  not.  The  pressure, 
political  as  well  as  social,  which  a\  »uld  be  brought  to 
bear  upon  the  ministers  if  the  decision  of  such  questions 
rested  practically  with  them,  would  be  most  embarrass- 
ing to  them,  while  the  ultimate  consequences  might  be 
a  serious  interference  with  the  sentences  of  the  courts. 

"  On  the  whole,  therefore,  I  hope  that  the  colonial 
legislatures,  and  public  opinion  generally,  will  concur 
with  ine  in  tlie  opinion  that  the  existing  rule  and  prac- 
tice i.  salutary,  and  may  with  advantage  be  main- 
tained." •■ 


"■  Commons  Pappra,  1875,   vo).     to  Govrnior  Robinson,  of  Oct.  7, 
liii.  !•.  (>!)().     Sec  also,  to  tlin  s.uno     1871;  ibid.  p.  07a. 
fll'ect,  Eurl  Caniurvon'a  DespatchL'S 


JIES. 


ADMINISTRATION  OF  THE  PREROGATIVE  OF  MERCY.       257 


I  them- 

ixtreme 

!  stated, 

—  [the 

taken, 

on  the 

lat  they 

le  right. 

nentary 

le  other 

I  to  the 

resigna- 

ility  for 

govern- 

le  knows 
:   undcr- 
)f  alVairs 
all  ques- 
rogative 
iew  does 
is  at  all 
ressure, 
light  to 
uestions 
Ijarrass- 
ight  be 
courts, 
colonial 
concur 
id  prac- 
ni}ihi- 


f  Oct.  7, 


Expressing  himself  to  a  similar  effect,  in  a  debate  in  Donbio  re- 
the  House  of  I^ords  upon  this  question,  on  April  16,  my  forl'x- 
1875,  Earl  Carnarvon  adds  these  si<j;nificant  remarks:  fV"*^'"^ 

'  fj  mis  prtTO" 

"  No  doubt  it  may  be  objected  to  the  system  of  the  go-  gative. 
vernor  consulting  his  ministry,  and  still  acting  on  his 
own  judgment,  that  it  sets  up  a  double  responsibility. 
In  reply,  I  submit  that  in  this  case  a  concurrent  respon- 
sibility is  better.  On  the  one  hand,  the  governor  will 
not  be  relieved  of  his  responsibility  to  the  Crown,  and, 
on  the  other  hand,  the  local  government  will  not  be 
relieved  of  its  responsibility  to  its  own  parliament;  so 
that,  while  the  colonial  parliament  may  punish  the 
minister  for  improper  advice,  the  Crown  may  punish 
the  governor  for  an  improper  decision.  The  fact  is 
that,  in  these  matters,  we  cannot  be  too  logical,"  an  ex- 
pression which  was  afterwards  explained  to  mean  "  we 
ought  not  to  be  too  logical." " 

These  conclusions,  however,  merely  point  to  the 
possible  consequences  of  a  material  difference  of  opi- 
nion, upon  a  question  arising  out  of  the  exercise  by  a 
governor  of  the  prerogative  of  mercy,  between  the 
Crown  and  the  governor  on  the  one  hand,  and  between 
his  ministers  and  the  local  parliament  on  the  other. 
It  is  quite  conceivable  that  a  governor  miglit  so  act,  in 
a  case  of  this  description,  as  to  merit  and  receive  a 
rebuke  from  the  Crown,  witliout,  at  the  same  time, 
being  recalled  or  dismissed  from  office.  In  like  manner, 
it  is  equally  reasonable  to  suppose  tiiat,  under  certain 
circumstances,  one  or  both  of  the  houses  of  tlic  local 
parliament  might  record  their  disapproval  of  advice 
given  by  ministers,  in  a  matter  afl'ecting  the  adminis- 
tration of  the  prerogative  of  mercy  by  the  governor, 
without  their  insisting  that  their  vote  of  censure  should 
be   followed  up  by  the   resignation  of  the  ministry. 


"  Hans.  Dob.  vol.  ccxxiii.  p.  1073.    See  the  Kiirl  of  Kimberloy'.s  .'ip'ocli, 
ibiil.  !>.  107U. 


« II 


I    it 


'4 


258       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


V'/ 


fc''/  ..' 


fTi  \, 


pn'ce- 
dciits. 


While  it  is  true  that,  as  a  general  principle,  "advice  and 
responsibility  go  hand  in  hand,"  complete  responsibility 
for  an  act  should  not  always  be  insisted  upon,  when 
that  act  is  performed  by  one  who  is  himself  primarily 
responsible  for  it,  on  imperiial  considerations,  which  re- 
move the  act  itself  from  the  category  of  cases  of  purely 
local  import  and  signification. 

The  undermentioned  precedents  will  exhibit  these 
principles  in  action,  and  will  show  their  practical  opera- 
tion in  colonial  politics:  — 
Australian  After  the  establishment  of  responsible  government  in 
the  several  colonies  of  Australia,  much  misapprehension 
and  diversity  of  practice  arose  therein,  in  regard  to  the 
constitutional  mode  of  dealing  with  applications  for  the 
remihvsion  or  mitigation  of  sentences  upon  convicted 
criminals. 

In  some  places,  it  was  customary  to  allow  the  pre- 
rogative of  mercy  to  be  achninistered,  as  in  ordinary 
matters  of  lo(  al  concern,  upon  the  advice  of  ministers, 
without  attaching  to  the  governor  any  peculiar  or  ex- 
clusive responsibility.  So  far  had  this  departure  from 
strict  rule,  and  IVom  the  obligations  imposed  u])()n  the 
governor  by  his  instriu^tions,  been  carried  that,  in  at 
least  one  colony,  it  had  been  *he  practice  for  the  gover- 
nor to  leave  signed  pardons  in  blank,  to  be  fdled  up  and 
used  during  his  temporary  absence  from  the  seat  of 
government' 

Sliorlly  after  tlie  appoiutinont  of  the  E:ul  of  Bclmore,  in 
18GH,  to  l)(»  the   o^ovenior  of  New  Soiitli   Wales,  the  proper 


Lord  nd- 
iiiorc  ill 
N.w 
Soul 
Waif 


'>  constitutiojial  j)ro('e(lure,  in  the  julnihiistiation  ot"  tliis  pre- 
rogative, WHS  amicably  disenssed  between  himself  and  the 
j)remier  (Mr.  John  Rol)ertHon j.  liy  nuitual  eonsent,  the 
secu'etary  of  staU;  for  the  eoloiiies  was  appeiiled  to  for  his 
views  in  the  njutter  of  the  personal  responsibility  of  the  go- 


'  New  Zonlaiul,  T rouse  (if  Ilcprfi-     1,  a.   p.    10.      Nnw  Zealand  Pari. 
potitativfs  .loiinial,  187j    appx.  vol.     Dob.  July  5,  1876,  p.  IJiJO. 
i.  j.p.  7!i-«2,  OU;  thitl.  1872,  A.  no. 


^•i^'j»e*»J--  •-• 


.)( 


:iES. 

/ice  and 
iisibility 
1,  when 
rimarily 
hich  re- 
.f  purely 

it   these 
III  opera- 

nment  in 
•ehension 
rd  to  the 
IS  for  the 
convicted 

the  pre- 
ordinary 
ministers, 
iar  or  ex- 
ture  from 
upon  the 
lilt,  in  at 
lie  govor- 
ed  up  and 
e    seat  of 


hehnore,  in 

It  he  proper 

]l"  this  i)rc- 

II"   and  tho 

miseut,  the 

to  for  his 

of  tho  go- 

tciilaiiJ  Pari. 


ADMINISTRATION  OF  THE  PREROGATIVE  OF  MERCY.       259 

vernor  in  granting  or  withliokling  remissions  of  sentences,  as 
to  whether,  in  fact,  tlie  governor  was  bound  by  his  instruc- 
tions to  act  on  his  own  independent  judgment  or  not. 

This  application  elicited  from  the  secretary  of  state  (Lord 
Granville)  a  l)rief  reply,  dated  Oct.  4,  1809,  which  said  that 
**  the  responsibility  of  deciding  upon  such  applications  rests 
with  the  governor,  and  he  lias  undoubtedly  a  right  to  act 
upon  his  own  independent  judgment.  lint  unless  any  impe- 
rial interest  or  policy  is  involved,  as  might  be  tho  case  in  a 
matter  of  treason  or  slave-trading,  or  in  matters  in  which 
foreigners  migiit  be  concerned,  the  governor  would  be  bound 
to  allow  great  weight  to  the  recommendation  of  his  minis- 
try." " 

Lord  Granville's  despatch  was  followed  by  another  from  his 
successor.  Lord  Kimberley,  addressed  to  all  the  Australian 
governors,  and  dated  Nov.  1,  IHTl.  It  was  herein  stated 
that  "  the  governor,  as  invested  with  a  portion  of  tho  queen's 
prerogative,  is  bound  to  examine  personally  each  case  in 
which  he  is  called  upon  to  exorcise  the  power  entrusted  to 
him,  although  in  a  colony  under  responsible  government  he 
will,  of  course,  pay  due  regard  to  the  advice  of  his  ujiiiisters, 
who  are  responsible  to  the  colony  for  the  proper  administra- 
tion of  justice  and  the  prevention  of  crime,  and  will  riot  grant 
any  pard(ui  without  recei>'>ng  their  advice  thereupon."*' 

Clear  and  explicit  as  were  the  directions  contained  in  tliis 
circular  despatch  (of  which  a  brief  extiact  only  is  given  in 
the  preceding  citation),  they  appear  t-^  have  been  misunder- 
stood in  New  South  Wales.  Upon  the  arrival  of  Sir  Her-  Sir  ITor- 
cules  Kohinson  in  that  colony,  in  June,  1H7:2,  to  assume  the  1',!'.!!,'!..'*° 
government,  he  found  a  ])ractioe  prevailing  there  almost  as 
objectionable  and  irregular  as  the  one  above  mentioned  which 
was  complained  of  by  L(u-d  Hclmore  ;  namely,  that  all  ajjplica- 
tions  for  mitigation  or  pardon  of  sentences  (not  being  (".ipital 
cases,)  were  expected  to  be  disposed  of  by  the  governor  him- 
self, unaided  by  advice  from  any  miiiister.  (lovernor  Robin- 
son   lost  i.o    time   in   api)lying  to  the  colonial  secretary  for 


biiisoii. 


further  instruct 


tl 


lereupon. 


ions 
Lord  Kimberley,  in  reply  to  this  appcid,  wrote  a  despatch, 

^  Commons  PaporR,  1073,  vol.  hii.  pp.  031,  032. 
*  luid.  vol.  liii.  p,  033. 


H'. 


1 


I 


.«—*••««, 


I    '1l    ' 


I! 


260       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

dated  Feb.  17,  1873,  pointing  out  thai  there  was  no  incousis- 
tency  in  previous  instructions  issued  from  tiic  colonial  ofiice 
on  this  subject.  "  A  governor,  in  jj  .ni-in^  }  ai'ions,  is  ex^v- 
ci.^ing  a  portion  of  the  queen's  prrrog.iuve,,  fiod  h,.:s  strictly  a 
right  to  exercise  an  independent  judgment;"  bui,  ;n  a  colony 
under  responsible  goverinnent,  he  i.L>  '•  bound  no*^  to  grant  any 
pardon  without  recfnving  [ministerial]  advice  thereon."  It 
is  only  necessary,  "  in  capital  cases,"  for  the  governor  to 
"  formally  consult  with  his  ministers  in  council."  In  other 
cases,  the  governor  may  corisult,  or  act  upon  the  advice  of, 
"  the  minister  who  is,  for  the  time  beinj,  j>rimariiy  concerned 
in  such  matters,  in  whatevei"  manner  is  most  convenient  to 
both."  "•" 

Impressed  Avith  the  importance  of  securing  ministerial  re- 
sponsibility on  behalf  of  all  administrative  acts  he  might  per- 
form, and  considering  these  directions  as  a  ratification  by  the 
colonial  minister  of  this  doctrine.  Governor  Robinson  lobt  no 
time  in  informing  his  chief  minister  (Mr.  Parkes)  of  his  rea- 
diness to  initiate  a  system  in  regard  to  the  prerogative  of 
2)ardon  in  strict  accordance  with  constitutional  principles. 

Mr.  Parkes  embodied  his  own  views  upon  the  sul)j(!ct  in  a 
memorandum,  dated  May  30,  1874.  *'  He  iv  eferreo  that  the 
responsibility  of  deciding  upon  apj)ln'atio?is  for  mitigation  of 
sentences  should  remain,  as  heretofore,  solely  with  the  gover- 
nor ;  but,  if  a  change  were  insisted  ou,  and  the  cases  of  pri- 
soners were  to  be  decided  on  the  a<lvice  of  ministers,  as 
recjuired  by  the  secretary  of  state,  he  ct-uld  see  no  sufficient 
reason  for  making  a  distinction  between  tl)it>  class  of  business 
and  the  ordinary  b'winess  of  government.  In  effect,  he  de- 
clined to  accept  nny  responsibility  for  ministers,  unless  they 
had,  not  only  in  iorm,  but  in  substance,  a  voice  in  such 
decisions."* 

Contrasting  the  "independent  judgment"  claimed  for  the 
governor,  under  his  instructions,  with  the  position  of  the 
sovereign  in  the  mother  country,  Mr.  Parkes  jnoceeds  to  re- 
mark :  "  There  can  be  no  question,  I  believe,  that  from  the 
beginning  of  the  present  reign  the  home  secretary  m  England 
decides  absolutely  in  all  matters  of  this  kind  in  the  name  of 


intel 

owij 

adv 

tlie 

Mr, 

the 

rest! 

a  m 


y 
p.  (i;i| 


*  Conirnoiis  Papers,  1S75,  vol.  liii.  pp.  037,  042. 

*  lOid.  pp.  Oys,  (jl-J. 


ADMINISTRATION  OF  THE  PREROGATIVE  OF  MERCY.       261 

tho  Crowii,  and  that  the  Crown  does  not  ia  [)ractice  Inter- 
lere."^  ii»is  portion  of  the  prerogative,  thon,  ^vljen  in- 
trusted to  the  governor  of  a  colony,  "  unlike  the  prerogative 
in  England,  i.s  intended  to  be  a  veiirt;:  ir  its  exer*^  i s^  ;  "  juvl 
tiie  governoi,  in  such  caiies,  "  is  subject  to  a  si^nerior  and  in- 
strucrujg  authority."  And,  even  when  ministers  are  permit- 
ted to  "  advise  him,"  "  j  cannot  be  doubted  that  the  advico 
here  intended  is  wholly  distinct  in  its  nature  from  the  ad- 
vico  given  in  the  general  conduct  of  affairs.  In  the  general 
case,  the  advice  is  uniforndy  accepted,  as  the  first  condi- 
tion of  the  adviser  continuing  in  office."  .  .  .  ''  Tiie  excep- 
tional advice  implied  seems  to  he,  of  the  nature  of  opinion  or 
suggestions,  to  which  weight  may  be  attached  as  coming  from 
l)ersons  '  responsible  to  the  colony  for  the  proper  administra- 
tion of  justice  and  the  prevention  of  crime,'  but  which,  in 
any  case  or  in  every  case,  may  be  partially  or  wholly  disre- 
garded." ' 

In  reply  to  this  memorandum,  Go  senior  Robinson  observes 
that,  "under  a  constitutional  form  of  government,  the  Cro  n 
is  supposed  to  accei)t  or  reject  the  advice  of  responsible  mi- 
nisters." As  governor,  he  has  an  "  undoubted  right  "  to  reject 
such  advice,  —  if  he  is  prepared  to  accei)t  the  consecpiences. 
But,  practically,  he  wouhl  never  do  so,  except  in  cases  which 
he  considered  to  involve  ''  such  a  gross  abnse  of  the  preroga- 
tive that  both  the  secretary  of  state  and  local  public  oi)inion 
would  be  likely  to  support  him  in  the  adoption  of  extren-o 
measures." 

"  In  all  ordinary  cases,  therefore,  in  which  neither  imperial 
interests  or  policy  were  involved,  the  governor,  whatcv  v  \\\t' 
own  private  o[)inion  might  be,"  was  prepared  to  aci'^5  ''^^>'- 
advice  of  the  minister  specially  responsible  to  tiie  ^y.<\iy  for 
the  administration  of  justice.  \\(\  entirely  t;oncurrc(]  witu 
Mr,  Parkes,  "that  the  responsibility  for  the  exercise  li.rc  of 
the  queen's  jirerogative  of  pardon  mus  cither,  as  heretofore, 
rest  solely  with  the  governor,  t)r  it  must  be  transferred  ta 
a  minister,  who  will  be  subject  in  this,  as  iu  the  dibcharge  of 


y  ronimnnsPaptMft.  1875,  vol. liii.  tho  preH»'iii  roipn,  g^e  Martin,  Life 

p.  0;IM.  .Mr.  I'iH-kcs  tiii^'lit  I'av"  said  of  the  Priiioc  Consort,  vol.  i.  \\.  111. 
the  same  of  the  roijj;!!  of  (i('ori^«»  1 V.  *   i'omiuuiis  I'apeis,  1873,   vol. 

S('«  Colchester  Diary,  vol.  iii.  p.  'Jt)7.  liii.  p.  OJti. 
For  the   coustitutiuiiul  practice  la 


S 


J  S 


'    *!  ' 


'fi 


I  i 


I  ! 


f^  ^ 


Sir  H. 

lt(>l>iii8on 

ontliiapru- 

ru({utive. 


262       PAKLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

other  adminiKtnitive  functions,  only  to  tliose  checks  which  the 
ConsticMtion  imposes  on  every  servant  of  the  Crown  who  is 
at  the  sunie  time  responsible  to  Parlinment.  He  therefore 
expressed  his  desire  "  that,  for  the  future,  all  applications  for 
mitigation  of  sentences  should  be  submitted  to  me,  throu«^h 
the  intervention  of  a  responsible  minister,  whose  opinion  and 
advice  as  regards  each  case  should  be  specified  in  writing  upon 
the  pajjcrs."  " 

Ministers  agreed  in  these  conclusions  ;  and  a  minute  of 
council  was  passed,  dated  Juno  2,  1874,  in  conformity  with 
the  pla:i  proposed  by  the  governor. 

In  reporting  this  decision  to  the  secretary  of  state  for  the 
colonies  (Lord  Carnarvon),  for  his  approval.  Governor  Robin- 
son states:  "  This  is  simply  the  mo(le  in  which  all  the  ordi- 
nary business  of  government  is  conducted;  and  I  could  see 
no  sufticient  reason  for  making  any  distinction  in  these  cases." 
"  It  appears  to  me,  too,  that  the  i)lan  determined  on  meets  all 
the  requirements  specified  in  Lord  (Jranville's  and  Lord  Kim- 
berley's  despatches  on  this  subject.  The  pa])crs,  in  every  case, 
will  be  laid  boi'ore  the  governor,  for  his  dtMjision.  He  will 
thus  have  an  opportunity  of  considering  whether  any  imj)e- 
rial  interest  or  policy  is  involved,  or  whether  his  personal  in- 
tervention is  calle<l  for  on  any  other  grounds."'  If  there 
should  be  no  such  necessity,  he  would  of  course  give  effect  to 
the  advice  of  his  resi)onsible  minister  ujion  the  case. 

Adverting  to  the  jiossible  difl'erence  of  ()})inion  upon  sucli  a 
question  between  the  governor  and  his  advisers,  —  and  to  Mr. 
I'arlri's's  contention  "■  that  the  refusal  of  the  governor  to  ac- 
cept the  advice  of  the  minister,  in  any  case  of  pardon,  would 
necessiiiily  Involve  his  resignation,"  —  (lovernor  Rol.iinson  re- 
marks that  this  argument  is,  in  his  oj)iiiion,  pushed  too  far. 
"  Of  course,  theoretically,  such  a  view  is  correct;  but  I  need 
scarcely  j)oint  out  that,  in  the  jiractical  transaction  of  busi- 
ness, ministers  do  not  tender  their  resignations  upon  every 
trivial  difference  of  opinion  between  themselves  and  the 
governor."'' 

Lord  Carnarvon,  in  thn'e  separate  despatches  to  Governor 
iv  binson,  severally  dated  Oct.  7,  lb74,  expresses   his   ap- 


»  (^nnimons  rai»crs.  1875,  vol.  liii. 
"  ibi<(.  vol.  liii.  p.  Ol:j. 


p.  040. 


ADMINISTRATION  OF  THE  PREROGATIVE  OF  MERCY.       263 

proval  of  tlje  foregoing  arrangements,  which  are  essen- 
tially identical  with  the  practice  established,  in  similar  cases, 
in  all  other  Australian  colonies,  and  with  the  views  of  her 
Majesty's  government.  Hut,  "as  Mr.  Parkes  correctly  ob- 
serves, the  minister  in  a  colony  cannot  be  looked  upon  as 
occupying  the  same  position,  in  regard  of  the  (jucen's  preroga- 
tive of  pardon,  as  the  home  secretary  in  this  country.  The 
governor,  like  the  home  secretary,  is  personally  selected  by 
the  sovereign  as  the  (le[)ositary  of  this  prerogative,  which  is 
not  alienated  from  the  (hown  by  any  general  delegation,  but 
onl}'  confided  as  a  matter  of  high  trust  to  those  individuals 
whom  the  Crown  commissions  for  the  purpose.  Actually, 
therefore,  as  well  as  formally,  the  governor  will  continue  to 
be,  as  he  has  hitherto  been,  in  New  South  Wales  and  in  other 
colonies,  the  person  ultimately  responsible  for  the  exercise  of 
the  prerogative.  Hut  this  is  (juite  consistent  with  the  further 
duty,  expressly  impost-d  upon  him,  of  consulting  his  ministers 
or  minister,  before  he  acts." 

In  proof  of  the  necessity  for  reserving  to  tlie  governor  the 
final  decision  upon  (juestioiis  that  might  involve  eonsetjuences 
too  momentous  for  the  determination  of  the  ministers  of  any 
one  colon3%  however  large  and  important,  Lord  C'arnarvon 
points  out  that  "the  eft'eet  upon  neigiibouring  colonies,  the 
empire  generally,  or  foreign  countries,  of  letting  loose  a 
highly  criminal  or  dangerous  felon  to  reside  in  any  part  of  the 
world,  except  only  that  principally  concerned  to  take  charge  of 
him,  was  a  step  which  might  clearly  and  net  unreasonably 
give  rise  to  complaints  from  without  the  colony ;  nor  could 
the  recommendation  of  a  colonial  nunistrv,  in  favour  of  such 
a  course,  be  oi'  itself  a  sul!ii;ient  justilieation  of  it."  More- 
over, to  release  a  felon  upon  any  such  comlitiou  was  alto- 
gether contrary  to  the  theory  now  generally  accepte<l :  *'  that  a 
community  should  not  relieve  itself  of  its  worst  criminals,  at 
the  expense  of  other  countries."  The  local  enactment  which 
has  heretofore  authorized  the  exercise  of  this  right  (11  Viet, 
e.  IM)  "  ought,  to  be  considered  as  virtually  obsolete,"  and  as 
an  act  which  "  cannot  be  too  soon  repealed." " 


«  Cnmmon.H  PnporB,    1875,  vol.  Australia  havi"  oxprossod  thoir  will- 

liii.  pp.  (i7()  <l7i).     Lonl  Caiiiarvon  inj^in'ss  to  n-poal  tliis  law."     Ilaii.s. 

alli'rwanl.s  stated  "  that  tlu*  colonifs  Dt'l).  vol.  ccx.xiii    p.  1074.      And  the 

of  New  Soutli   Wales  and   [South]  revLsed    iii.>>trui.lioii.s   Lssuod   to   the 


■y'\\\ 


•'    ■|i<>jWI 


264       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


m 


m 


Gardiner's 
case. 


This  decision  of  the  secret.ary  of  state,  that,  while  the 
governor  of  a  colony  is  bound  to  consult  liis  ministers  upon 
all  applications  connected  with  the  exercise  of  the  preroga- 
tive of  pardon,  —  whether  capital  cases  or  otherwise,  —  he 
remains  ultimately  responsible  for  the  administration  of  this 
prerogative,  was  accepted  in  New  South  Wales,  as  a  rea- 
sonable and  satisfactory  settlement  of  the  constitutional 
question.** 

Meanwhile,  in  the  year  1872,  before  the  change  of  practice 
had  been  adopted  which  relieved  the  governor  of  personal 
responsibility  in  all  ordinary  cases  of  ajjplications  for  pardon, 
Governor  Kobinson,  in  his  discretion  and  independent  judg- 
ment, had  seen  fit  to  release  from  gaol  one  Gardiner,  a  con- 
victed felon,  on  condition  tliat  he  should  leave  the  colony. 
Two  years  afterwards,  in  June,  1874,  tliis  matter  was  brought 
before  the  House  of  Assembly.  A  motion  was  made  to  pre- 
sent an  address  to  the  governor,  disapproving  of  Gardiner's 
release,  which  was  only  negatived  by  the  casting-vote  of  the 
speaker.  But  the  question  wfis  agitated  in  the  country,  and 
numerous  petitions  were  addressed  to  the  governor  on  Gardi- 
ner's behalf.  Tiiis  led  his  Excellency  to  reconsider  the  ques- 
tion. After  reviewing  his  former  decision,  and  determining 
that  it  ought  not  to  be  reversed,  he  embodied  his  views  in  a 
minute,  which  he  laid,  with  the  petitions,  before  the  execu- 
tive council.  That  body,  having  examined  the  papers,  were 
of  opinion  that  no  grounds  existed  to  warrant  them  in  advis- 
ing the  governor  to  withdraw  the  conditional  pardon  he  had 
given  to  (iardiner.  His  Excellency  accordingly  refused  to 
grant  the  prayer  of  the  petitioners. 

In  order  to  allay  the  existing  agitation  in  the  public  mind, 
and  at  the  same  time  to  ac(iuaint  parliament  with  what  had 
been  done,  the  proceedings  of  the  executive  council  in  this 
ease,  together  with  the  governor's  minute  to  coinicil,  were 
laid  on  the  table  of  both  houses  by  ministers,  just  before  the 
prorogation,  so  that  the  papers  might  be  printed  and  circu- 
lated during  the  recess. 

When  parliament  re-assembled,  this  act  of  laying  on  the 


povprnor    of    South    Australia,    in  tion  of  pardon,  exoopt  in  the  caso 

1877,  and  to  the  govenior-prpiieral  of  of  political  offences. 

Canada  in  1H7H,  contained  a  clause  •*  Connnona   Papers,  1875,  vol. 

forbidding  buuishmeut,  us  a  condi-  liii.  p.  tiOl. 


( 


ADMINISTRATION  OF  THE  PREROGATIVE  OF  MERCY.       265 

table  the  governor's  minute  was  taken  exception  to  in  the 
Assembly,  and  an  address  to  the  governor,  ct)ndi.'ninatory  of 
that  proceeding,  as  well  as  of  the  tenor  of  the  document  it- 
self, was  moved  and  defeated  (anain)  by  the  speaker's  casting- 
vote,  liut  during  the  debate  the  govern(jr  was  charged, 
by  different  members,  with  having  "insulted  and  degraded 
the  house  by  unconstitutional  interference  and  criticism."" 
Shortly  afterwards,  parliament  was  dissolved.  In  the  n(;w 
Assembly,  the  attack  was  renewed,  under  circumstances  which 
have  been  already  explained  in  a  previous  section  of  this 
chapter. ' 

These  repeated  and  not  altogether  unsuccessful  attempts 
to  render  the  governor  directly  amenable  to  the  House  of 
Assembly,  for  acts  performed  by  him  u^jou  his  personal  re- 
sponsibility as  an  imperial  officer,  were  reported  by  him  to 
the  secretary  of  state,  in  a  despatch  dated  Nov.  30,  1874. 
While  these  attempts  had  liitherto  been  defeated,  the  gover- 
nor's actions  had  been  exposed  to  parliamentary  criticism, 
through,  as  his  Excellency  remarked,  ''  my  having  had  imposed 
on  me,  }>ersonally,  as  her  Majesty's  representative,  adminis- 
trative functions,  independent  of  my  responsible  advisers. 
There  are,  of  course,  political  duties  which  the  governor,  as 
holding  the  balance  between  contending  [)arties,  must  always, 
necessarily,  perform  upon  his  own  incU'iJcndent  judgment, 
such,  for  exami)le,  as  the  refusal  or  acceptance  of  the  resig- 
nation of  the  ministry;  the  selection  of  a  new  premier;  and 
the  granting  or  refusal  of  a  dissolution,  when  asked  for.  But 
the  late  discussions  in  parliament  have,  I  think,  clearly  shown 
that  no  possible  advantage  which  can  be  gained  by  requiring 
the  governor  personally  to  take  the  initiative  in  ordinary 
admniistralive  acts  can  compensate  for  the  animadversions  to 
which  his  proceedings  must,  in  such  case,  be  exposed  in  the 
popular  branch  of  the  legislature." 

**  There  is  only  one  way,"  his  Excellency  adds,  '■'•  in  which 
the  governor's  action  can  be  kept  out  of  the  heated  atmo- 
sphere of  parliamentary  discussions,  and  that  is  by  relieving 
him,  as  far  as  possible,  from  the  duty  of  taking  the  initiative 
in  the  transaction  of  administrative  business.     His  action,  as 


! 


»f 


il 
>  11 


)l 


l\ 


*  Commons  Papers,  1875,  vol.  liii.  pp.  080-083. 

*  See  ante,  p.  00. 


■  »M  4a9«*N«lv«l^ 


Case  of 

Louisa 

Hunt. 


i 


266     PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

regards  such  details,  should,  I  think,  be  limited  to  accepting 
or  rejecting  the  advice  of  his  ministers.  The  importance  of 
maintaining  this  principle  appears  to  have  been  recognized 
and  acted  upon  to  a  greater  extent  in  the  neighbouring  colo- 
nies than  it  has  been  in  New  South  Wales."  « 

In  acknowledging  the  receipt  of  this  despatch,  the  secre- 
tary of  state  acce[)ted,  without  hesitation,  the  governor's  ex- 
planation of  his  conduct,  to  which  exception  had  been  taken 
in  the  House  of  Assembly,  and  stated  that  he  should  present 
all  the  papers  on  the  subject  to  the  Imperial  Parliament.'' 
After  they  were  so  submitted,  a  debate  aiose  upon  the  gene- 
ral (juestion.  in  the  House  of  Lords,  wherein  a  decided  con- 
currence of  o[)ini()n  was  expressed  in  favour  of  maintaining 
the  ministerial  doctrine,  as  to  the  right  and  duty  of  the  go- 
vernor to  exercise  a  fiiud  and  independent  judgment,  as  an 
imperial  ofiieer,  upon  all  questions  arising  out  of  the  exercise 
of  the  prerogative  of  mercy  ;  but  only  after  he  had  fully  and 
freely  considered  the  advice  of  his  ministers  upon  each  par- 
ticular case.' 

In  1877,  the  exercise  of  the  prerogative  of  mercy  by  the 
governor  of  Tasmania,  on  behalf  of  a  convict  named  Louisa 
Hunt,  upon  the  advice  of  his  ministers,  and  in  accordance 
with  the  revised  instructions  issued  by  her  Majesty's  colonial 
secretary,  was  censured  by  both  houses  of  the  local  parlia- 
ment. Papers  on  the  subject  were  presented  to  the  parlia- 
ment in  answer  to  addresses.  Whereuijon  in  each  chamber, 
it  was  resolved,  that  "  the  advice  tendered  by  his  ministers 
to  his  Excellency,  and  which  led  to  the  release  of  the  prisoner 
Louisa  Hunt,  was  improper,  and  such  as  to  tend  to  subvert 
the  administration  of  justice."  The  cabinet,  however,  did 
not  make  this  "a  ministerial  question."  They  did  not  dis- 
pute the  competency  of  the  houses  to  i)ronounce  upon  their 
conduct  in  the  matter,  and  they  accepted  the  censure  ;  but 
did  not,  on  that  account,  resign  office.  The  ministry  was 
weak  in  parliamentary  sujjport,  and  it  fell  shortly  afterwards, 
because  of  the  rejection  by  the  Assembly  of  their  financial 
policy.     But  ministers  did  not  consider  that  the  disapproval 


«  Commons   Papers,  1875,  vol. 
liii.  j)|).  (i8()-()S.'). 

"  JbtU.  vol,  hii.  p.  G85. 


'  Hans.   Deb. 

10G5. 


vol.    ccxxiii.    p. 


lES. 

.ccepting 
•tance  of 
cognized 
iug  colo- 

lie  secre- 
rnor's  ex- 
>cn  taken 
lI  present 
liament.** 
the  gene- 
;ided  con- 
lintiiining 
»f  the  go- 
ciit,  as  an 
e  exercise 
fully  and 
each  par- 

•cy  by  the 
^ed  Louisa 
cordance 

colonial 
\\  parlia- 
je  parlia- 

hamber, 
niinisters 

prisoner 
o  subvert 
ever,  did 

not  dis- 
ipon  their 
sure ;  but 
listry  was 
fterwards, 

linancial 
isapproval 

ccxxiii.    p. 


I  c 


ADMINISTRATION  OF  THE  PREROGATIVE  OF  MERCY.       267 

by  the  houses  of  the  advice  they  had  given  upon  a  question 
the  final  disposal  of  which  was  vested  in  the  governor,  ne- 
cessitated their  resignation  of  office.^ 

There  is  another  question  of  considerable  interest 
and  importance,  in  connection  with  the  administration 
of  the  prerogative  of  mercy,  which  should  be  noticed :  fj.'j'ns'"'"'*" 
it  is  in  regard  to  the  right  of  a  governor  to  issue  a  kchiuI 
proclamation  of  general  anniesty  to  political  ofl'enders. 

In  the  circular  despatch  addressed  by  the  Earl  of 
Kimberley  to  colonial  governors  on  Nov.  1,  1871,  which 
treats  of  the  powers  vested  in  the  governor  of  a  colony 
to  grant  pardons,  it  is  intimated  that,  inasmuch  as  in 
England  a  pardon  is  not  granted  before  the  trial  of  an 
offender,  so,  with  respect  to  "  the  promise  of  pardon  to 
political  oflenders  or  enemies  of  the  state,  her  Majesty's 
government  are  of  opinion  that,  for  various  reasons,  it 
would  not  be  expedient  to  insert  the  power  of  granting 
such  pardons  in  the  governors'  commissions;  nor  do 
they  consider  that  there  is  any  practical  necessity  for 
a  change.  If  a  governor  is  authorized  by  her  Majesty's 
government  to  proclaim  a  pardon  to  certain  political 
offenders  or  rebels,  he  can  do  so.  If  he  is  not  in- 
structed from  home  to  grant  a  pardon,  he  can  issue  a 
proclamation,  as  was  done  in  New  Zealand  in  1805,  by 
Sir  G.  Grey,  to  the  effect  that  all  who  had  borne  arms 
against  the  queen  should  never  be  prosecuted  for  past 
offences,  except  in  certain  cases  of  murder.  Such  a 
proclamation  would  practically  have  the  same  effect  as 
a  pardon."  ^ 

The  issue  of  a  proclamation  of  amnesty  or  oblivion 
for  past  offences  against  the  Crown  and  government 


i   Tasmania  Len^ishitive  Council  Majesty's  socrolary  of    state,   and 

Journals,  1878,  uppx.  nos.  35,  ;iO.  elicited  a  rebuke  from  that  ofRcer 

The  "Hunt  case"  gave  rise  to  a  to  both  particM  in  tlit;  controversy, 

sharp  and  acrimonious  correspond-  Ihid.  1878-79,  no.  118. 
ence  between  tlu;  governor  and  the  ''  Commons   Papers,  1875,  vol. 

chief-justice   of   the   colony,  copies  liii.  p.  {j'.ii. 
of   which  were  transmitted  tu  liur 


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Corporation 


23  WEST  MAIN  STRICT 

WEBSTER,  N.Y.  MS80 

(716)  873-4303 


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268     PARLIAMENTARY   GOVERNMENT  IN  THE  COLONIES. 


HI 


Special 
law  in 
Upper 
Cauada. 


of  the  realm  is  within  the  undoubted  prerogative  of 
the  Crown;  and  an  amnesty  or  pardon  may  thus  be 
granted  by  the  sove  eign  either  before  or  after  attainder 
or  conviction  ; '  anc\  also  by  a  colonial  governor,  acting 
under  instructions  from  the  Crown."' 

In  Upper  Canada,  after  the  insurrection  of  1837,  the 
provincial  parlian.ent  passed  an  act  to  empower  the 
lieutenant-goverjior,  upon  the  petition  of  any  person 
charged  with  liif,h  treason  before  his  arraignment,  pray- 
ing for  a  pardon,  to  grant  him  (by  and  with  the  advice 
of  the  executive  council)  a  conditional  pardon ;  which 
should  nevertheless  have  the  effect  of  an  attainder  for 
high  treason,  so  far  as  concerned  the  forfeiture  of  his 
property." 

We  must  now  revert  to  the  general  question  as  to 
the  constitutional  method  of  exercising  the  prerogative 


» ;.;! 


•  1  List.  120  n,  note  4;  3  Inst. 
233.  Bishop,  Criminal  Law,  c.  59, 
on  "  Pardon." 

™  Forsyth,  Constitutional  Law, 
p.  113.  Proclamations  of  amnesty 
were  issued  by  Lord  Durliani,  go- 
vernor-general of  Canada  in  IboS; 
by  Sir  George  Grey,  governor  of 
New  Zealand,  in  1805;  by  Sir  G. 
F.  Bowen,  governor  of  New  Zea- 
land, in  1371;  and  by  Lord  Duf- 
ferin,  governor-general  of  Canada, 
in  1875.  (See  tl»e  Canada  Ofiiciiil 
Gazette,  of  April  24,  1875.)  Tliis 
proclamation  granted  a  full  amnesty 
to  all  persons  concerned  in  the  in- 
surrection in  the  North-west,  in 
1809  and  1870,  excepting  that  the 
amnesty  to  Louis  Kiel  and  Ambroise 
Lepine  was  made  conditional  on  five 
years'  banishment  from  her  Majesty's 
dominions;  and  that  W.  B.  O'Do- 
noluie  was  not  included  in  the  grant 
of  amnesty.  But  on  Nov.  22,  1877, 
Lord  Duiferin  approved  of  a  I'e- 
connuendation  from  his  ministers 
in  council  that  a  pardon,  condi- 
tional on  five  years'  banishment, 
from  April  23,  1875,  should  be 
granted  to  O'Douohue.     On  Nov. 


27,  the  governor-general  enclosed  to 
the  secretary  of  state  for  the  colo- 
nies a  copy  of  the  order  in  council, 
and  of  the  official  gazette  contain- 
ing the  proclamation  which  he  had 
caused  to  be  issued  for  the  pur- 
pose of  giving  effect  to  this  act  of 
mercy.  Canada  Sess.  Papers,  1878, 
no.  55. 

"  U.  C.  Stat.  1  Vict.  c.  10.  See 
Lieut. -Governor  Arthur's  despatch, 
of  Aug.  29,  1838,  in  rehition  to 
this  statute;  which  is  specially 
noteworthy  as  commenting  upon 
tlie  apparently  conflicting  claims  of 
the  governor-general  of  Canada 
and  tiie  lieutenant-governor  of  Up- 
per Canada  to  the  exercise  of  the  pre- 
rogative of  mercy,  undertheir  seveial 
commissions  from  the  Crown  and 
instructions  from  the  secretary  of 
state.  Upper  Canada  Assembly 
Journals,  1839,  appx.  vol.  ii.  pt. 
2,  p.  025.  Since  confederation,  the 
administration  of  this  prerogative 
has  l)een  withdrawn  from  tiie  lieu- 
tenant-governors of  tiie  Canadian 
provinces,  and  vested  solely  in  the 
governor-general  of  the  dominion. 
Canada  Sess.  Papers,  1869,  no.  10. 


ADMINISTRATION  OF  THE  PREROGATIVE  OF  MERCY.       269 

of  mercy  in  a  British  colony,  for  the  purpose  of  point- 
ing out  the  special  instructions  which  have  been  given 
to  the  governor-general  of  the  dominion  of  Canada  on 
this  subject. 

Prior   to   the    confederation   of   the    British   North  itsexer- 

ciso  in 

American  provinces  in  1867,  and  up  to  the  time  of  the  Canada. 
appointment  of  the  Marquis  of  Lome  to  be  governor- 
general  in  1878,  the  instructions  to  the  governors-gene- 
ral of  Canada  were  identical  with  those  given  to  other 
colonial  governors.  By  virtue  of  these  instructions, 
the  governor  was  understood  to  be  bound  to  consult 
his  ministers  in  all  cases  of  application  for  the  mitiga- 
tion or  remission  of  sentences,  but  he  remained  at 
liberty  to  disregard  their  advice  and  to  exercise  the 
royal  prerogative  according  to  his  own  judgment  and 
upon  his  own  personal  responsibility  as  an  imperial 
officer. 

Thus,  in  September,  1861,  the  governor-general.  Sir  p.attcr- 
Edmund  Head,  after  fully  considering  in  council  the 
case  of  one  Patterson,  convicted  of  murder  and  sen- 
tenced to  death,  resolved  to  gr.ant  him  a  reprieve, 
notwithstanding  that  the  attorney-general  and  other 
members  of  the  executive  council  were  adverse  to  the 
commutation  of  the  sentence  and  in  favour  of  permitting 
the  law  to  take  its  course.  The  reasons  which  actuated 
the  governor  in  this  decision  were  duly  recorded  in  the 
minutes  of  council." 

Again,  on  January  15,  1875,  the  Earl  of  DufTerin,  J^fP'"'-''^ 
governor-general,  informed  the  dominion  minister  of 
justice  that,  after  a  "  full  and  anxious  consideration  " 
of  the  evidence  and  other  papers  concerning  the  trial 
of  Ambroise  Lepine  for  the  murder  of  Thomas  Scott,  he 
had  decided  to  commute  the  capital  sentence  passed 
upon  Lepine  to  two  years'  imprisonment,  together  with 


son  8  case. 


case. 


o  See  the  Quebec  IMoniing  Chronicle,  Sept.  7,  18G1.     And  see  Canada 
Assembly  Journals,  1858,  appx.  no.  17. 


j  I 


i    ! 


*:  1 


«|     ^ 


270       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


m 


Proposed 
clianifc  in 
till'  gover- 
nor's pow- 
ers. 


the  permanent  fof^eitiire  of  his  political  rights.  In 
dealing  with  this  case  "  according  to  his  independent 
judgment  and  on  his  own  personal  responsibility,"  the 
governor  reported  his  reasons  for  the  same  to  her  Majes- 
ty's secretary  of  state. "  Although  there  appears  to 
have  been  no  formal  record  in  a  minute  of  council  of 
this  proceeding,  "full  and  ample  communications" 
passed  between  the  governor-general  and  his  ministers 
on  the  subject,  and  his  conduct  was  entirely  approved 
by  the  imperial  government.'^ 

In  November,  1875,  the  correspondence  above  cited 
between  the  colonial  secretary  and  the  governor  of  New 
South  Wales,  in  reference  to  the  exercise  of  the  preroga- 
tive of  mercy,  was  transmitted  to  the  governor-general 
of  Canada  and  laid  before  the  Canadian  parliament.' 

This  official  communication  led  to  a  careful  examina- 
tion of  the  question  by  the  dominion  minister  of  justice 
(Mr.  Blake) ;  and  the  expediency  of  some  further  altera- 
tion of  the  terms  of  the  governor's  commission,  and  of 
the  royal  instructions  applicable  to  the  administration 
of  this  prerogative,  was  one  of  the  matters  of  public 
interest  and  importance  upon  which  Mr.  Blake  pro- 
ceeded to  England  in  June,  1876,  at  the  request  of  Lord 
Carnarvon,  for  the  purpose  of  having  a  personal  con- 
ference with  her  Majesty's  ministers.^ 

At  this  conference,  Mr.  Blake  submitted  various 
reasons,  resulting  from  the  growing  importance  of  the 
dominion  of  Canada  and  its  relation  as  a  self-govern- 
ing community  to  the  mother  country,  whichj  he 
contended,  would  justify  the  allowance  of  a  larger 
discretion  in  the  determination  of  cases  by  the  pre- 
rogative of  pardon  in  Canada  than  would  be  suitable 
in  Australia  or  elsewhere.     He  was   of  opinion   that 


P  Canada  Gazette  extra,  Jan.  19,  "■  Canada,    Sess.    Papers,   1876, 

1875.  no.  110. 

•J  Ilans.  Deb.  vol.ccxxiii.p.  1075.  '   See  ante,  pp.  78-80. 


[ES. 

ts.    In 
lendent 
y,"  the 
'  Majes- 
)ears  to 
Lincil  of 
ations  " 
linisters 
pproved 

)ve  cited 
r  of  New 
preroga- 
r-(reneral 
nent.' 
Bxamina- 
of  justice 
er  altera- 
m,  and  of 
listration 
of  public 
lake   pro- 
it  of  Lord 
lonal  con- 
various 
ice  of  the 
llf.govern- 
^hich,   he 
a  larger 
the  pre- 
suitable 
lion   that 

Lpers,  1876, 
0. 


ADMINISTRATION  OF  THE  PREROGATIVE  OF  MERCY.       271 

this  prerogative  should  be  exercised  in  Canada,  as  a 
general  rule,  precisely  as  it  is  administered  in  England  ; 
namely,  pursuant  to  the  advice  of  the  dominion  minis- 
ters as  well  in  capital  as  in  non-capital  cases.  Mr. 
Blake  admitted  the  difficulty,  if  not  the  impossibility, 
of  formulating  a  special  rule  on  the  subject,  because 
cases  might  occur  which  would  involve  imperial  as  well 
as  Canadian  interests.  Such  cases,  however,  would  be 
rare  and  exceptional,  and  might  be  disposed  of  as 
they  arose  by  mutual  adjustment,  in  which  due  regard 
should  be  had  to  the  constitutional  powers  and  relations 
of  the  Crown,  the  governor-general,  and  the  Canadian 
privy  council. 

These  suggestions  were  frankly  accepted  by  the 
colonial  secretary,  and  he  expressed  his  readiness  to 
advise  an  amendment  of  the  governor-general's  com- 
mission and  instructions  in  general  agreement  with  Mr. 
Blake's  proposals.' 

After  Mr.  Blake's  return  to  Canada,  further  corre- 
spondence ensued  between  the  imperial  and  dominion 
governments  upon  this  subject.  Drafts  of  the  proposed 
alterations  in  the  commission  and  instructions  were 
considered  and  agreed  upon  between  the  ministers  of 
the  Crown  in  Canada  and  the  home  government.  It 
was  decided,  however,  to  await  the  appointment  of  a 
new  governor-general  before  giving  full  effect  to  the 
intended  changes. 

Upon    the   expiration   of  Lord   Dufferin's   term   of  n 
service,  he  was  replaced   by   the  Marquis  of  Lome.  jrillmT-^ 
The  new  commission  and  instructions  issued  upon  this  ''"'■  koik'- 
occasion  were  framed   in  accordance  with  the   condi-  nada. 
tions  agreed  upon  between  the  dominion  and  imperial 
governments.     As  regards  the  prerogative  of  pardon, 
the  directions  therein  contained  do  not  materially  differ 


ow  in- 


'  Canada  Sess.  Papers,  1877,  no.  13. 


1  1- 


I 


H  I 


'1     ' . 


272     PARLIAMENTARY  GOVERNIMENT  IN  THE  COLONIES. 


I J 


from  those  embodied  in  the  revised  letters-patent  issued 
in  1877,  on  behalf  of  South  Australia,  and  which  have 
been  already  noticed."  The  variations,  however,  in  Lord 
Lome's  commission  and  instructions  —  coupled  with 
the  assent  expressed  by  her  Majesty's  government  to 
the  proposition  that,  in  all  cases  of  a  merely  local 
nature,  the  advice  of  the  Canadian  ministers  in  respect 
to  the  exercise  of  the  prerogative  of  pardon,  should 
not  only  be  taken,  but  should  prevail  —  suffice  to 
extend  to  the  Canadian  government,  upon  such  ques- 
tions, the  same  freedom  of  action  as  in  all  other  matters 
which  concern  solely  the  internal  administration  of  the 
affairs  of  the  dominion.' 

The  new  letters-'?atent  constitutino;  the  office  of 
governor-general  of  Canada  contain  no  reference  to 
the  exercise  of  the  prerogative  of  pardon;  but  the 
accompanying  draft  of  instructions  includes  the  direc- 
tions heretofore  distributed  between  the  commission 
and  instructions,  in  the  following  terms :  — 

"  We  do  further  authorize  and  empower  our  said  governor- 
general,  as  he  shall  see  occasion,  in  our  name  and  on  our 
behalf,  when  any  crime  has  been  committed  [for  which  the 
offender  may  be  tried  within  our  said  dominion"],  to  grant 
a  pardon  to  any  accomplic  lot  being  the  actual  perpetrator 
of  such  crime,  who  shall  give  such  information  as  shall  lead 
to  the  conviction  of  the  principal  offender ;  and,  further,  to 
grant  to  any  offender  convicted  of  any  crime  in  any  court,  or 
before  any  judge,  justice,  or  magistrate,  witliin  our  said  do- 
minion, a  pardon,  either  free  or  subject  to  lawful  conditions, 


"  See  ante,  p.  82. 

^  See  the  correspondence  be- 
tween the  government  of  Canada 
and  the  goverinnent  of  the  United 
Kingdom  upon  the  subject  of  tlie 
Royal  Instructions,  prior  to  Oct.  5, 
1878.  Canada  Sess.  Papers,  1879, 
no.  181. 

^  Heretofore,  in  lieu  of  the  words 
in  brackets,  the  instructions  had  said 
"  within  our  said  colony,''  or  "do- 


minion." But,  by  the  change  in- 
troduced in  the  revised  instructions, 
the  power  to  grant  a  pardon  to  ac- 
complices is  extended  to  cases  where 
the  crime  has  been  connnitted  out- 
side of  the  limits  of  the  dominion, 
but  for  which  tln^  offender  may  be 
tried  therein.  This  alteration  was 
suggested  by  Mr.  Blake,  in  1876. 
See  his  Report  to  the  Canadian  Privy 
Council,  p.  4. 


*   1    M  J 


riES. 

it  issued 
ich  have 
',  in  Lord 
led  with 
nment  to 
ely  local 
n  respect 
n,  should 
suffice    to 
uch  ques- 
jr  matters 
ion  of  the 

office  of 
ference  to 
;  but  the 
the  direc- 
ommission 

cl  governor- 
,nd  on  our 
which  the 
],  to  grant 
perpetrator 
shall  lead 
further,  to 
;iy  court,  or 
ur  said  do- 
conditions, 

j\e  change  in- 
ll  instructions, 
Ipardon  to  ac- 
Ito  cases  wbeve 
Inmiitted  out- 
Ibe  dominion, 
Slider  may  be 
-alteration  was 
ike,  in  1876. 
Lnadian  PrivT 


ADMINISTRATION  OF  THE  PREROGATIVE  OF  MERCY.   273 

or  any  respite  of  the  execution  of  the  sentence  of  any  such 
offender,  for  such  period  as  to  our  said  governor-general  may 
seem  fit,  and  to  remit  any  fwies,  penalties,  or  forfeitures  which 
may  become  due  and  payable  to  us.  Provided  always,  that 
our  said  governor-general  shall  not  in  any  case,  except  where 
the  offence  has  been  of  a  political  nature,  make  it  a  condition 
of  any  pardon  or  remission  of  sentence  that  the  offender  shall 
be  banished  from,  or  shall  absent  himself  from,  our  said  do- 
minion.'' And  we  do  hereby  direct  and  enjoin  that  our  said 
governor-general  shall  not  pardon  or  reprieve  any  such  offen- 
der without  first  receiving,  in  capital  cases,  the  advice  of  the 
privy  council  for  our  said  dominion,  and  in  other  cases  the 
advice  of  one  at  least  of  his  ministers,^  and  in  any  case  in 
which  such  pardon  or  reprieve  might  directly  affect  the 
interests  of  the  empire,  or  of  any  country  or  place  beyond 
the  jurisdiction  of  the  government  of  our  said  dominion, 
our  said  governor-general  shall,  before  deciding  as  to  either 
pardon  or  reprieve,  take  those  interests  specially  into  his  own 
personal  consideration,  in  conjunction  with  such  advice  as 
aforesaid.^ 

By  this  last  section,  the  independent  judgment  and  Effect  of 
personal  responsibility  of  the  governor-general  of  Ca-  stnicUons. 
nada,  as  an  imperial  officer,  are  relied  upon  to  decide 
finally,  after  consultation  with  his  ministers,  in  all  cases 
of  imperial  interest,  or  which  might  directly  affect  any 
country  or  place  outside  of  Canada ;  while  he   is   at 


IK! 


ll 


I 


t.       il 


^  This  clause  does  not  appear 
in  earlier  instructions;  but  it  was 
deemed  by  the  secretary  of  state  to 
l)e  obviously  wrong  to  thrust  upon 
other  communities  a  criminal  who 
was  regarded  as  unfit  to  remain  at 
large  in  his  own  country.  (See  ante, 
p.  263.)  In  this  opinion  Mr.  Blake 
fully  concurred,  while  he  suggested 
"  that  it  may  be  just  and  convenient 
that  the  restriction  should  not  be 
applicable  to  the  cases  of  political 
criminals,  to  whose  offences  as  a  rule 
the  considerations  which  make  such 
a  condition  obnoxious  hardly  apply, 
while  public  convenience  and  the 
tranquillity  of  the  country  may  occa- 


sionally be  best  consulted  by  so 
disposing  of  them."  (Report  in 
187G,  p.  5.)  The  colonial  secretary 
approved  of  this  exception.  See  the 
correspondence  laid  before  the  do- 
minion parliament  in  1879. 

y  In  practice,  this  minister  is 
understood  to  be  the  minister  of 
justice;  but  for  obvious  reasons  the 
limitation  to  any  particular  minister 
is  not  insisted  upon.  See  the  corre- 
spondence above  referred  to. 

"  For  the  Marquis  of  Lome's  com- 
mission and  instiuctions,  see  Com- 
mons of  Canada  Sess.  Papers,  1879, 
no.  14. 


l5(^ 


18 


1 


■^^V^W^^Ufeu*^**. 


ii    I 


274       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

liberty  to  defer  to  the  judgment  of  his  ministers  in  all 
cases  of  merely  local  concern. 

In  any  case  where  the  govcrnor-gencA'al  is  authorized 
to  act  independently  of  his  ministers,  he  may,  if  he 
thinks  fit,  remit  the  matter  to  the  consideration  of  the 
secretary  of  state  for  the  colonies,  for  the  purpose  of 
ascertaining  the  opinion  of  her  Majesty's  government 
thereon.  This  was  done  in  1877,  by  decision  of  "  the 
governor  in  council,  "  in  the  case  of  Peter  Martin." 


m 


Imperial 
regula- 
tions for 
colonial 
governors. 


Imperial  Dominion  exo.rcisahle  over  Self-governing  Colonies  : 
i.  In  militayy  and  vaval  matters. 

Our  observations  on  this  head  will  be  suitably  pre- 
faced by  the  following  extracts  from  the  "  Revised  Regu- 
lations for  the  Colonial  Service,"  issued  in  1879  :  — 

§  II.  Autliority  of  the  Governor  in  relation  to  her  3Iaje8ty's 

Troops. 

10.  The  governor  of  a  colony,  though  bearing  the  title  of 
captain-general  or  commander-in-chief  is  not,  without  special 
appoir'  'ent  from  her  Majesty,  invested  with  the  command 
of  h  ;/  Majesty's  regular  forces  in  the  colony.  He  is  not, 
therelore,  entitled  to  receive  the  allowances  annexed  to  that 
command,  or  to  take  the  immediate  direction  of  any  mihtary 
operations,  or,  except  in  case  of  urgent  necessity,  to  communi- 
cate officially  with  subordinate  military  officers,  without  the 
concurrence  of  the  officer  in  command  of  the  forces.  Any 
such  exceptional  communication  must  be  immediatelj^  notified 
to  that  officer. 

11.  Except  in  the  case  of  invasion  or  assault  by  a  foreign 
enemy,  it  is  the  duty  of  the  governor  to  determine  the  objects 
with  which  and  the  extent  to  which  her  Majesty's  troops  are 
to  be  employed.  He  will,  therefore,  issue  to  the  officer  in 
command  of  the  forces  directions  respecting  their  distribution 


•  Confidential  report  of  the  do-  correspondence  concerning  the  royal 
minion  minister  of  justice  (Mr.  instructions.  Canada  Sess.  Papers, 
Blake),  dated  March  5,   1877,  iu    1879»  no.  181. 


ONIES. 

ters  in  all 

.utliorized 
lay,  it"  he 
ion  of  the 
)urpose  of 
)verninent 
11  of  "  the 
artin." 

'  Colonies : 


litably  pre- 
/ised  llegu- 

^79:  — 

r  Majesty's 

the  title  of 
bout  special 
tie  command 
He  is  i»ot, 
xcd  to  that 
any  military 
Ito  communi- 
witliout  the 
'ovccs.     Any 
,tely  notified 

1  by  a  foreign 
|e  the  objects 
]s  troops  are 
(he  officer  in 
distribution 

[rnhiu;  the  royal 
(a  Sess.  Papers, 


CONTROL  OVER  MILITARY  AND  NAVAL  MATTERS.       275 

and  their  employment  on  escort  and  other  duties  rc(iuired  for 
the  safet}'^  and  welfare  of  the  colony.  In  all  these  matters, 
however,  the  governor  will  consult  as  far  as  possible  with  the 
officer  in  connnand,  and  will  incur  special  responsibility,  if  he 
shall  direct  the  troops  to  be  stationed  or  employed  in  a  man- 
ner which  that  officer  shall  consider  open  to  military  objection. 

12.  The  governor,  as  the  qi'een's  representative,  will  give 
the  "  word"  in  all  places  within  his  government. 

13.  On  the  other  hand,  the  officer  in  command  of  the  forces 
will  determine  all  military  details  rcspecling  the  distribution 
and  movement  of  the  troops  and  the  composition  of  the  differ- 
ent detachments,  taking  care  that  the_^'  are  in  conformity 
with  the  general  directions  issued  to  him  by  the  governor. 

14.  The  officer  in  command  of  her  Majesty's  land  forces  is 
alone  charged  with  the  superintendence  of  all  details  connected 
with  the  military  department  in  a  colon}'-,  the  regimental 
duty  and  discipline  of  the  troops,  inspections,  and  summon- 
ing and  holding  couits-martial,  garrison  or  regimental,  and 
the  granting  leave  of  absence  to  subordinate  militaiy  officers. 

15.  He  carries  into  execution,  or  his  own  authority,  the 
sentences  of  courts-martial,  excei^ting  sentences  of  death, 
which  must  first  be  approved,  on  behalf  of  the  queen,  by  the 
officer  administering  the  civil  government. 

16.  He  makes  the  officer  administering  the  civil  govern- 
ment returns  of  the  state  and  condition  of  the  troops,  of  tlie 
liiilita  y  departments,  of  the  stores,  magazines,  and  fortifica- 
tions ^'itlnn  the  colon}^  and  furnishes  duplicates  of  all  such 
returns  of  this  nature  as  he  may  be  required  or  may  see  occa- 
sion to  send  to  the  military  authorities  at  home,  or  to  any 
officer  under  whose  general  command  ho  is  placed. 

17.  On  the  receipt  of  the  annual  mutiny  act,  the  officer  in 
command  of  her  Majesty's  land"  forces  communicates  to  the 
civil  authority  the  "general  orders"  in  which  it  may  be  pro- 
mulgated. 

18.  And  in  the  event  of  the  colony  being  invaded  or  assailed 
])y  a  foreign  enemy,  and  becoming  the  scene  of  active  mili- 
tary operations,  the  officer  in  command  of  her  Majesty's  land 
forces  assumes  the  entire  military  authority  over  the  troops. 

19.  The  above  regulations  will  liold  good,  tliough  the  go- 
vernor may  be  a  military  officer  senior  in  rank  to  the  officer 
in  command  of  the  forces. 


li 


I 

ll  i  I      it 

i! 


^WkAkkT^ 


:'!i: 


n 


Military 
forrc'spiMi- 
(U'nce  v.itii 
Imjierial 
govern- 
ment. 


276       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

20.  If  several  colonies  are  coinprised  in  one  military  com- 
mand, the  officer  in  command  of  tlie  whole  may  transfer  troops 
from  one  colony  to  another  o.i  an  application  from  the  go- 
vernor of  the  colony  to  which  the  troops  are  sent,  transmittcid 
to  him  either  througli  the  governor  of  the  colony  in  which  ke 
is  serving,  or  throngh  tlie  officer  commanding  the  forces  in 
the  colony  for  which  troops  are  required.  But  the  officer  in 
command  must,  in  all  cases,  consult  with  the  governor  of  the 
colony  from  which  the  troops  are  sent,  and  will  incur  a 
special  responsibility  if  he  sends  them  away  without  that  go- 
vernor's consent. 

21.  Except  in  the  case  of  the  North  American  colonies, 
colonies  comprised  under  one  government-in-chief  are  to  he 
treated,  for  military  purposes,  as  a  single  colony.  Natal,  for 
the  same  purpose,  will  be  considered  part  of  the  government 
of  the  Cape  of  Good  Hope. 

§  III.  Military  Corresjjoiidence. 

107.  The  governors  of  colonies,  commanding  her  Majesty's 
troops  therein,  must  separate  their  correspondence  with  the 
secretary  of  state  for  the  colonies,  and  the  secretary  of  state 
for  war,  in  the  following  manner:  — 

198.  Whatever  relates  to  tlie  discipline  of  the  troops,  or  to 
the  employment  of  them  in  any  ordinary  and  established  ser- 
vice, or  to  the  relief  of  the  troops  after  their  time  of  local 
service  shall  liave  expired,  or  to  the  interior  economy  of  her 
Majesty's  land  forces,  will  properly  form  the  subject  of  corre- 
spondence with  the  secretary  of  state  for  war  exclusively. 

199.  In  the  event  of  actual  hostilities  with  any  foreign 
enemy,  or  of  any  extraordinary  employment  of  the  troops  for 
the  maintenance  of  the  public  peace,  such  occurrences  must 
be  reported  both  to  the  secretary  of  state  for  war  and  to  the 
secretary  of  state  for  the  colonies. 

200.  In  the  event  of  its  being  thought  necessary  to  make 
or  to  advise  any  military  convention  with  the  ofhcer  in  com- 
mand of  the  troops  of  any  foreign  power,  a  governor  command- 
ing her  Majesty's  troops  \vill,  at  the  same  time,  report  to  the 
secretary  of  state  for  the  colonies,  and  to  the  secretary  of  state 
for  war,  the  measures  which  he  may  have  so  taken,  or  those 
which  he  may  wisli  to  recommend  for  adoption. 

201.  In  case  it  should  be  necessary,  in  order  to  render  the 


I* 


snES. 

[iry  com- 
er troops 
the  go- 
lusmitttid 
whicli  ke 
forces  ill 
officer  ill 
lor  of  the 
I   incur  a 
t  that  go- 
colonies, 
are  to  be 
Natal,  for 
avernment 


r  Majesty's 
;e  with  the 
iry  of  state 

•oops,  or  to 
)Ushecl  ser- 
le  of  local 
Duiy  of  her 
let  of  corre- 
lisively. 
|ny  foreign 
troops  for 
;nces  mnst 
and  to  the 

|ry  to  make 
•dev  ill  com- 
,  command- 
Iport  to  the 
liry  of  state 
In,  or  those 

I  render  the 


CONTROL  OVER  MILITARY  AND  NAVAL  MATTERS. 


277 


governor's  military  reports  intelligible,  to  make  reference, 
ill  his  correspondence  wi^h  the  secret^i'iy  of  state  for  war,  to 
topics  connected  with  his  civil  aiithorit_y ,  he  will  in  every  sucli 
case  at  the  same  time  bring  under  the  notice  of  the  secretary 
of  state  for  the  colonies  the  questions  of  civil  government  to 
which  he  may  thus  have  had  occasion  to  advert. 

202.  As  any  attempt  to  deline  the  limits  of  a  governor's 
civil  and  military  correspondence  may,  from  the  nature  of 
the  case,  be  im[)erfect,  and  may  omit  to  provide  for  some  un- 
foreseen exigency,  he  will  best  fiillil  the  joint  pleasure  of  the 
secretary  of  state  for  war  and  of  the  secretary  of  state  for  the 
colonies  by  conducting  his  civil  correspondence  exactly  as  he 
would  condu(;t  it  if  he  possessed  no  military  command,  and 
v{(;e  versa.  The  two  functions  of  governor  and  of  commander 
of  the  forces,  though  for  the  time  combined  in  the  same  per- 
son, should  be  regarded  in  this  respect  as  entirely  separate, 
and  the  reports  made  by  the  governor  in  each  capacity  should 
be  made  precisely  in  the  same  manner  as  if  that  combination 
of  powers  did  not  exist. 

203.  The  preceding  instructions  will  appl}'  also  to  the  go- 
vernor's correspondence  respecting  the  service  of  the  commis- 
sariat. 

204.  The  respective  officers  employed  under  the  war  office 
are  in  all  cases  without  exception  to  give  timely  notice  to  go- 
vernors of  any  communications  which  they  may  intend  to 
send  home,  affecting  such  governors  or  the  orders  given  by 
them,  so  that  her  Majesty's  government  may  be  simultaneously 
made  acquainted  with  the  opinions  of  the  governors,  and  with 
the  opinion  of  those  officers  on  any  matter  on  which  it  is  re- 
quisite that  the  views  of  both  should  be  known. 

205.  When  the  civil  governor  of  a  colony  shall  have  occa- 
sion to  report  upon,  or  bring  under  the  consideration  of  the 
secretary  of  state  for  the  colonies,  matters  which  involve 
military  as  well  as  civil  considerations,  or  which  require  the 
decision  or  concurrence  of  the  secretary  of  state  for  war,  the 
governor  will  first  communicate  with  the  officer  in  command 
of  the  forces  in  the  colony  respecting  the  matters  in  question ; 
and,  having  obtained  that  officer's  opinion  or  observations 
thereupon,  he  will  transmit  the  same  with  his  own  report  to 
the  secretary  of  state  for  the  colonies. 

206.  The  officer  iu  commaud  of  the  forces  is  similarly  iu- 


i| 


M 


!   U 


S! 


Il 


'     'I 


278       TAKLTAMENl  ARY  GOVERNMENT  IN  THE  COLONIES. 

structed  to  obtain  the  opinion  of  tlie  governor  before  report- 
ing to  the  socretiirv  of  state  for  war,  or  to  any  ollicer  under 
whose  general  command  he  is  phieed,  on  any  matter  which 
involves  civil  as  well  as  military  considerations,  or  whicli  can- 
not be  decided  without  reference  to  the  secretary  of  state  for 
the  colonies. 

207.  The  oflicer  in  command  of  the  forces  has  been  in- 
structed to  send  to  the  governor  dui)licates  of  all  reports  on 
whatever  subjects,  other  than  those  relating  to  discii)line  and 
the  routine  of  tlie  service,  which  he  may  have  occasion  to 
send  to  the  secretary  of  state  for  war  or  to  any  othcer  under 
whose  general  comnumd  he  is  placed.  In  case  the  governor 
considers  that  these  reports  require  the  consideration  of  the 
secretary  of  state  for  the  colonies,  he  is  to  forward  the  dupli- 
cates with  his  observations  by  the  same  mail  which  conveys 
the  original  report  to  the  secretary  of  state  for  war. 


(lonce. 


§  IV.  Naval  Correspondence, 

Naval  cor-  208.  Governors  of  colonies  should  communicate  with  offi- 
cers of  her  Majesty's  navy,  and  should  convey  notices  of  dif- 
ferent kinds  to  commanders  of  foreign  vessels  in  colonial 
waters,  in  the  following  mode  :  — 

209.  The  governor  will  write  in  his  own  name  to  any  se- 
nior naval  officer  (that  is  to  say,  the  senior  officer  then  within 
his  immediate  reach),  holding  the  rank  of  flag-officer,  captain, 
or  commander,  but  will  communicate  with  any  senior  officer 
of  lower  rank  through  his  private  secretary.  In  no  case  will 
he  communicate  through  the  colonial  secretary,  whose  func- 
tions are  of  a  different  character,  and  whose  office  should  not 
be  the  place  of  deposit  for  comnmnications  between  the  go- 
vernor and  officers  in  command  of  her  Majesty's  naval  forces. 

210.  Any  notice  or  direction,  conveyed  by  the  governor's 
authority  to  the  commander  of  any  foreign  vessel,  should  be 
conveyed  through  the  officers  of  the  colonial  government, 
and  not  through  the  officers  of  her  Majesty's  navy,  whose  in- 
tervention should  not  be  applied  for,  unless  the  directions 
conveyed  tlirough  the  ordinary  channel  should  fail  to  produce 
their  effect. 

The  constitutional  principles  asserted  in  the  preced- 
ing regulations  were  not  ascertained  and  put  into  force 


[^■, 


■V       .•*;■•»■ 


t^ 


■'.d 


S'lES. 

■e  report- 
cer  under 
ter  which 
^hich  can- 
[  state  for 

\  been  in- 
I'epovts  on 
ipiine  and 
ccasion  to 
ticer  under 
B  governor 
ion  of  the 
I  the  dupli- 
oh  conveys 

L". 


te  with  offi- 

tices  of  dif- 

in  colonial 

e  to  any  se- 
then  within 
er,  cai)tain, 
nior  officer 
Ino  case  will 
whose  func- 
should  not 
een  the  go- 
aval  forces, 
governor's 
[1,  should  be 
overnment, 
,  whose  in- 
e  directions 
ll  to  produce 

[he  preced- 
into  force 


CONTROL  OVER  MILITARY  AND  NAVAL  MATTERS.       279 

imtil  the  necessity  for  strict  rules  upon  the  subject  had 
become  unmistakably  apparent. 

During  the  progress  of  the  Maori  war  in  New  Zea- 
land in  the  years  18G5  and  1806,  dillerences  occurred 
between  the  governor  of  the  colony  and  the  colonel 
commanding  one  of  the  queen's  regiments  therein, 
whicli  were  seriously  aggravated  in  consequence  of 
the  defective  rules  then  in  operation  in  regard  to  mili- 
tary correspondence  between  army  ofiicers  and  the 
Horse  Guards  during  the  existence  of  a  state  of  war  in 
a  colony.  This  case  has  been  recorded  in  a  previous 
section.*"  It  led  to  the  adoption  of  the  revised  rules 
above  set  forth,  which  are  sufficiently  comprehensive 
and  explicit  to  meet  all  contingencies. 

Another  question,  more  momentous  in  its  scope 
and  consequences,  has  arisen  in  several  British  colo- 
nies. It  is  to  determine  the  exact  relation  of  the 
governor,  in  a  colony  possessing  "  responsible  govern- 
ment," towards  the  imperial  authorities  on  the  one 
hand,  and  towards  the  local  administration  on  the  other, 
in  the  control  of  military  matters.  Difficulties  have 
presented  themselves  in  different  places  upon  this  ques- 
tion, but  they  have  been  generally  surmounted,  and  a 
good  understanding  now  prevails  everywhere  upon  the 
subject. 

By  virtue  of  his  commission  from  the  Crown,  a  colo- 
nial governor  is  usually  and  appropriately  invested  with 
the  position  of  commander-in-chief  of  all  local  forces 
raised  within  the  colony.  His  relation  to  her  Majesty's 
regular  army  or  navy  depends  upon  the  nature  of  his 
instructions  from  home,  as  hereinbefore  provided.  If  a 
military  officer  commissioned  with  supreme  command 
be  in  the  colony,  he  necessarily  controls  all  military 
operations,  though  he  is  bound  to  act  in  co-operation 


Oriijin  of 
t'xistiiij; 
rules.   • 


Position  of 
a  governor 
ill  iiiilitiiry 
uiatti-rs. 


•>  See  ante,  p.  101. 


1^ 


P 


il 


,.  ti 


4^' 


V    I 


Thc'gcvcr- 
Dor's  mili- 
tary pow- 
ers in  New 
South 
AVales. 


Case  of 
Eossi. 


280       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

with  the  governor,  and  in  certain  matters  to  acknow- 
ledge his  superior  anthority.  These  points,  however, 
have  all  been  definitely  arranged  by  the  above-men- 
tioned official  regulations. 

In  Mew  South  Wales,  pursuant  to  the  Volunteer  Force  Re- 
gulation Act  of  18G7  (31  Vict.  no.  5),  which  is  still  in  opera- 
tion, the  governor  is  appointed  to  be  commander-in-chief  of 
the  colonial  volunteers ;  and  certain  specified  duties  are  im- 
posed upon  him,  in  relation  to  the  volunteer  force. 

In  18G9,  Sir  William  ^Manning,  the  colonial  attorney-gene- 
rrJ,  gave  it  as  his  opinion  that  tlie  governor  was  requir 
mider  this  statute  "  to  act  prerogatively  on  her  Majesty's 
behalf,"  and  to  exercise  the  functions  assigned  to  him  "•  upon 
his  own  responsibility,"  without  reference  to  his  executive 
council,  — upon  the  ground  that  the  duties  in  question  were 
analogous  to  those  which  in  England  appertained  to  the  com- 
mander-in-chief, and  not  to  tlie  secretary  of  state  for  war." 

In  1873,  Captain  F.  R.  Rossi,  a  volunteer  officer  of  this 
foi'ce,  was  complained  of  before  the  Legislative  Assembly,  for 
conduct  unbecoming  in  a  man  intrustcl  with  the  command  of 
a  body  of  citizen  soldiers.  He  was  tried  for  his  offence,  by  a 
select  committee  of  the  house,  who  recommejided  that  he 
should  be  dismissed  from  office.''  The  housg  concurred  in  this 
report,  and  transmitted  it  to  the  governor  for  his  considera- 
tion and  approval.  The  governor  (Sir  Hercules  Robinson) 
replied  by  message,  in  which  he  declined  to  carry  out  the 
recommendation  of  tlie  committoe,  inasmuch  as  its  proceed- 
ings were  contrary  to  law.  His  Excellency  poir.ted  out  that 
the  volunt^'er  act  provided  that  any  inquiry  into  the  con- 
diict  of  a  volunteer  officer  should  be  conducted  by  a  court 
assembled  by  direction  of  the  governor,  and  composed  exclu- 
sively of  volunteer  officers.  He  added  that  he  had  carefully 
investigated  the  charges  against  Captain  Rossi,  and  had  em- 

.i'hI  his  conclusions  upon  the  case  in  a  minute,  which  he 
liad  laid  before  his  responsible  advisers.  Acting  by  their 
cU  ,lce,  as  well  as  on  his  own  behalf  as  commander-in-chief, 
iie  was  prepared  to  direct  the  assembling  of  a  court  of  i.i- 


*  New  South  Wales,  Votes  and  Proceed.  Legislative  Assem.  187c.-74, 
vol.  iii.  p.  (i!K 

^  2sew  South  Wales,  Assem.  Jour.  1872-73,  vol.  i.  pp.  314,  1325. 


CONTROL  OVER  MILITARY  AND  NAVAL  MATTERS.       281 

quiry,  under  the  statute,  to  examine  the  complaint  against 
this  officer.  Whereupon,  after  a  protracted  debate,  the  Le- 
gislative Assembly  rescinded  their  resolution  for  tlie  adoption 
of  the  report  of  the  select  commi'  tee.** 

In  the  course  of  debate  on  this  question,  Governor  Robin- 
son's conduct  was  animadverted  upon ;  and  he  was  charged 
with  having  put  himself  into  collision  with  the  h(  >e.  His 
Excellency  took  no  notice  of  these  observations  at  the  time  ; 
but  afterwards,  when  writing  to  tlie  secretary  of  state  for  the 
colonies  (the  Earl  of  Carnarvon),  on  Nov.  30,  1874,  upon  a 
kindred  topic,  he  referred  to  these  injurious  reflections,  and 
justified  the  course  he  had  adopted  upon  this  occasion. 

Commenting  upon  the  incongruity  of  devolving  upon  the 
governor  personally  the  duty  of  taking  the  initiative  in  the 
transaction  of  any  sort  of  administrative  business,  while  lie 
owed  no  personal  responsibility  to  the  local  parliament,  his 
Excellency  remarks  that  "  it  seems  somewhat  inconsistent 
to  intrust  to  her  Majesty's  representative,  who  is  not  respon- 
sible to  parliament,  certain  special  duties  apart  from  his  ad- 
visers, and  then,  when  he  exercises  his  ftnictions  in  the  manner 
which  in  his  judgment  best  accords  with  the  honour  and  dig- 
nity of  the  Crown,  to  complain  Uiat  his  view  does  not  com- 
mand the  unanimous  approval  of  the  popular  branch  of  the 
legislature." ' 

In  the  same  despatch.  Governor  Robinson  points  out  that,  Govcr- 
elsewhere,  —  "  in  Victoria,  for  example,  —  the  volunteer  act  ""Jf^^*'^' 
imposes  the  duties  which  here  devolve  personally  upon  the  Victoria, 
governor  as  commander-in-chief  upon  the  governor,  with  the 
advice  of  his  executive  council ;  so  that  responsibility  for 
the  exercise  of  functions  in  military,  as  in  all  other  local,  mat- 
ters devolves  there  upon  the  ministers." *f     Practically,  the 
governor  exercises  no  more  authority,  in  military  business  in 
Victoria,  than  he  does  in  the  routine  of  any  other  department 
of  local  administration. 

In  New  South  Wales,  the  reorganization  of  the  volunteer 
forces  is  now  in  contemplation.  When  such  a  measure  is  in- 
troduced, there  can  be  no  doubt  tliat  the  constitutional  rela- 


!i 


,i'i\ 


«  New  South  Wales   Assom.  Jour.  1873-74,  vol.  i.  pp.  170,  220,  219. 
*  Commons  J'apers,  1875,  vol.  liii.  p.  084. 
e  Ibid.  p.  085. 


lA 


Hi    , 


Military 
powers  of 
the  gover- 
nor in 
Canada. 


Minister 
of  militia. 


282       PARLIAMENTARY  GOVERNMENT  IN  THE   COLONIES. 

tioi.s  which  exist  in  other  parts  of  the  British  colonijil  empire 
between  the  governor  as  commander-in-chief,  the  local  defence 
forces,  and  the  ministry,  will  be  dnly  recognized,  and  the  letter 
of  the  law  brought  into  harmony  with  the  spirit  of  the  Con- 
stitution. 

In  Canada,  from  the  period  of  confederation,  this  question 
has  received  a  satisfactory  solution. 

Pursuant  to  the  fifteenth  section  of  the  British  North 
America  act  of  1867,  "  the  command-in-chief  of  the  land 
and  naval  militia,  and  of  all  naval  and  military  forces  of  and 
in  Canada,  is  vested  in  the  queen,  and  shall  be  exercised  and 
administered  by  her  Majesty  personally,  or  by  the  governor  as 
her  representative." '' 

This  is  the  first  clause  in  the  Canada  militia  act  of  I808; 
and  it  secures  the  exercise  of  all  powers  luider  that  act  in  a 
constitutional  manner.  Those  matters  which  are  of  imperial 
direction,  and  concern  the  queen's  regular  army  or  navy, 
whilst  serving  in  Canada,  are  subject  to  the  control  of  the 
imperial  authorities  ;  whilst  those  whicli  concern  the  disposi- 
tion and  management  of  local  forces  are  regulated  by  the 
governor-general,  with  the  advice  and  consent  of  his  privy 
council  or  cabinet. 

These  principles  are  embodied  in  the  Canada  militia  act, 
which  likewise  provides  for  the  occurrence  of  actual  hostili- 
ties, and  insures  unity  of  action  in  such  an  emergency  by 
the  following  enactment :  that,  "  whenever  the  militia  or  any 
part  thereof  are  called  out  for  active  service,  by  reason  of  war, 
invasion,  or  insurreciion,  her  Majesty  may  place  them  under 
the  orders  of  the  commander  of  her  regular  forces  in  Canada."' 
This  has  always  been  done,  upon  the  occurrence  of  any  seri- 
ous disturbances  in  the  dominion ;  although  the  clause  does 
not  make  the  practice  obligatory. 

The  act  aforesaid  authorizes  the  appointment  by  the  gover- 
nor of  Canada  of  "a  minister  of  militia  and  defence,  who 
shall  be  charged  with  and  be  responsible  for  the  administra- 
tion of  militia  affairs,  including  all  matters  involving  expendi- 


^  Canada  Militia    and    Defence  tia   of  the    Dominion   of   Conada. 

Act  1808,  81  Viot.  c.  40.  Publislied  by  authority.     Ottawa. 

1  Ifnd.  sec.  Gl  (M).       And  see  the  Oct.  1,  1679. 
Kegulations  and  Orders  for  the  Alili- 


NIES. 

il  empire 
.1  defence 
the  letter 
the  Con- 
question 

sh  North 
the  land 
es  of  and 
cised  and 
(vernor  as 

of  18G8; 
:  act  in  a 
f  imperial 

or  navy, 
rol  of  the 
le  disposi- 
h1   by  the 

his  privy 

lilitia  act, 
al  hostili- 
■gency  by 
tia  or  any 

n  of  war, 
em  under 
Canada."' 

any  seri- 
alise does 

|he  gover- 
hice,  who 
llministra- 
expendi- 


Df   Canada. 
Ottawa. 


commaml- 
inu;  Cana- 
dian mi- 
litia. 


CONTROL  OVER  MILITARY  AND  NAVAL  MATTERS.       283 

ture,  and  of  the  fortifications,  gunboats,  ordnance,  ammunition, 
arms,  armories,  stores,  munitions,  and  habiliments  of  war, 
belonging  to  Canada."  This  minister  "shall  have  the  ini- 
tiative in  all  militia  affairs  involving  the  expenditure  of 
money."  He  is  assisted  by  a  deputy  minister,  and  subordi- 
nate officers. 

By  a  subsequent  amendment  of  the  law,  passed  in  1875,^  it  General 
is  enacted  tliat  "  there  shall  be  appointed  to  command  the 
militia  of  the  dominion  of  Canada  an  officer  holding  the  rank 
of  colonel  or  superior  rank  thereto  in  her  Majesty's  regular 
army,  who  shall  be  charged,  under  the  orders  of  her  Majesty, 
with  the  military  com.nand  and  discipline  of  the  militia,  and 
wlio,  while  holding  sucli  appointment,  shall  have  the  rank  of 
major-general  in  the  militia."  On  Oct.  1, 1874,  the  governor- 
general  conferred  this  appointment  upon  Major-General  (after- 
wards Lieutenant-General  Sir)  E.  Sclby  Smyth.  The  duties 
of  this  officer  are  analogous  to  those  performed  in  England  by 
the  commander-in-chief  of  the  British  army  ;  and  he  is,  in 
like  manner,  subordinate  to  the  civil  power,  and  subject  to  the 
direction  of  the  governor-general  through  the  minister  of 
militia  and  defence. 


In  the  event  of  the  occurrence  of  actual  hostili- 
ties, necessitating  the  active  service  of  the  Canadian 
militia  and  the  joint  action  of  the  local  forces  of  the 
dominion  with  her  Majesty's  regular  troops,  the  fore- 
going provisions  of  the  Canada  militia  law,  taken  in 
connection  with  the  imperial  regulations  above  cited, 
would  suffice  to  secure  liarmonious  co-operation  be- 
tween both  forces.  It  only  remains  to  consider  the 
most  suitable  method  of  giving  practical  cftect  to  these 
general  principles.  This  we  may  learn  from  the  fol- 
lowing remarkable  case,  wherein  the  whole  question  of 
military  discipline  and  subordination  was  thoroughly 
sifted  and  accurately  determined  :  — 

In  November,  1877,  the  colony  of  the  Cape  of  Good  Hope 
was  threatened  with  disaster,  from  a  war  which  had  broken 


Co-opera- 
tion l)e- 
twccn  im- 
perial anil 
colonial 
troops. 


J  38  Vict.  c.  8. 


tj 


-1 


I       rl 
1 


i 


284       PARLIAMENTARY  GOVERNMENT  IN  TIIE  COLONIES. 


Cape  of 

Good 

Hope. 


Preten- 
sions of 
the  Cape 
ministers. 


out  on  her  northern  frontier  with  certain  Kaffir  tribes,  and 
also  from  the  simultaneous  existence  of  a  Kaffir  rebellion 
in  the  eastern  provinces.  In  this  emergency,  the  governor 
(Sir  Bartle  Frere)  was  of  opinion  that  it  was  necessary  to 
aid  the  colonial  volunteer  force  by  additional  imperial  troops. 
Accordingly,  he  addressed  a  minute  on  the  subject  to  his  mi- 
nisters, in  which  he  pointed  out  the  need  for  reinforcements, 
and  likewise  the  importance  of  an  improved  organization  and 
control  of  the  colonial  military  establishment. 

Tlie  colonial  premier  (Mr.  Molteno),  in  reply  to  the  gover- 
nor's memorandum,  asserted  his  belief  that  the  colonists  were 
able  to  help  themselves,  Vvithout  assistance  from  her  Majesty's 
regular  army,  whose  presence  in  the  colony  tended,  he  thought, 
to  depress  the  spirit  of  the  people,  from  a  dread  of  military, 
or  rather  of  imperial,  domination.  He  therefore  advised  the 
withdrawal  of  her  Majesty's  troops  from  the  colony.  He  in- 
sisted, moreover,  upon  the  right  of  the  colonial  cabinet  to 
undertake  the  entire  management  of  the  colonial  forces ;  to 
place  the  same  in  charge  of  a  colonial  commandant-general, 
who  should  be  uncontrolled  by  any  imperial  military  au- 
thority ;  and  that  the  governor  himself  should  refrain  from 
interference,  inasmuch  as  he  "  lias  no  special  powers  over  colo- 
nial forces  as  commander-in-chief."  This  arbitrary  assump- 
tion of  power  was  accompanied  by  an  intimation  to  the 
governor  that  one  of  the  ministry  (the  commissioner  of  crown 
lands)  had  been  deputed  to  act  as  commandant-general,  in 
command  of  all  colonial  forces  whatsoever,  "  under  the  sole 
control  and  direction  of  the  colonial  government." 

In  answer  to  these  pretensions,  the  governor  denied  the 
existence  of  the  alleged  dissatisfaction  in  the  colony  at  the 
presence  therein  of  an  imperial  military  force  ;  he  protested 
against  the  scheme  of  his  ministers  for  the  direction  of  the 
local  volunteers,  &c.,  as  being  illegal  and  unconstitutional ; 
and  he  referred  to  the  reasonable  and  constitutional  practice 
which  had  hitherto  prevailed  since  the  outbreak  of  hostili- 
ties, whereby  "the  governor  and  commander-in-chief"  was 
in  the  habit  of  meeting  the  general  commanding  tlie  forces, 
and  two  or  three  of  the  responsible  ministers,  for  daily  con- 
sultation and  agreement,  so  that  by  their  joint  action  and  con- 
cert all  necessary  military  measures  might  be  authorized  and 
determined  upon.     The  governor  furthermore  contended  that 


z:,rf. 


«iiM*'> 


liH 


.ONIES. 

tribes,  and 
r  rebellion 
e  governor 
3cessary  to 
rial  troops. 
t  to  his  mi- 
Porcenients, 
ization  and 

the  gover- 
onists  were 
IV  Majesty's 
he  thought, 
)f  military, 
idvised  the 
ly.     He  in- 
cabinet  to 
forces ;  to 
mt-general, 
lilitary  au- 
efrain  from 
s  over  colo- 
ry  as.-iump- 
ion   to   the 
r  of  crown 
general,  in 
r  the  sole 

denied  the 
lony  at  the 
p  protested 
[ion  of  the 
[titutional ; 
al  practice 

of  hostili- 
Ihief"  was 
|the  forces, 

daily  con- 
In  and  con- 

>rized  and 

inded  that 


CONTROL  OVER  MILITARY  AND  NAVAL  MATTERS.       285 

the  distinction  drawn  by  Mr.  Molteno  between  imperial  and 
colonial  forces  was  entirely  imaginary,  because  while  serving 
in  the  colony  all  her  Majesty's  forces  whether  colonial  or 
imperial  are  subject  to  the  authority  of  "  the  governor  and 
commander-in-chief,"  who  is  the  chief  military  executive,  and 
who  is  himself  bound,  on  all  questions  affecting  the  colony, 
to  receive  the  advice  of  his  responsible  ministers,  and  not  to 
act  in  opposition  thereto  without  valid  reasons,  which  he 
must  place  on  record.  The  governor  is  also  bound  to  warn 
liis  ministers  of  the  consequences  of  any  advice  they  may 
offer,  when  he  sees  danger  from  proposed  changes,  and  to 
report  to  the  secretary  of  state  any  important  changes  in 
contemplation. 

"  Admitting  to  the  fullest  practical  extent  that '  the  gover- 
nor acts  solely  by  and  with '  the  '  advice '  of  his  ministers," 
Governor  Frere  declared  his  conviction  that  if,  under  present 
circumstances,  he  should  accept  the  advice  tendered  to  him, 
to  send  away  the  imperial  troops  and  to  trust  for  the  sup- 
pression of  the  rebellion  entirely  to  volunteers,  with  the  idea 
"  that  such  advice  was  in  accordance  Avith  the  wi  dies  of  par- 
liament, or  would  be  approved  by  the  parliament  of  this  co- 
lony," he  "  would  be  fitter  for  a  lunatic  asylum  "  than  for  the 
office  he  had  the  honour  to  fill. 

But  ministers  still  persisted  in  adhering  to  their  expressed 
opinions  in  this  matter  and  proceeded  to  carry  them  out,  by 
directing  certain  military  operations,  without  the  sanction 
either  of  the  governor  or  of  the  general  in  command.  The 
general,  however,  entered  a  formal  protest  against  this  pro- 
ceeding. 

Ministers  also  caused  to  be  inserted  in  the  o-iicial  ga- 
zette divers  military  appointments  and  promotions  which 
had  not  been  previously  submitted  for  the  governor's  ap- 
proval. At  first  these  appointments  were  made  in  the  go- 
vernor's name ;  subsequently  they  were  gazetted  without  any 
reference  to  his  authority. 

After  repeated  remonstrances  with  his  ministers  for  their 
illegal  and  unwarrantable  conduct,  and  after  ascertaining  that 
they  persisted  in  continuing  in  office,  declaring  that  they 
w^ere  only  accountable  to  parliament  for  their  public  conduct, 
the  governor  at  length,  on  Feb.  2,  1878,  notified  the  premier 
(Mr.  Molteno),  by  a  letter  sent  through  a  principal  officer 


i    1 1 


286       PARLIAMENTARY  G0\T:RNMENT  IN  THE  COLONIES. 


IJ 


Dismissal    of  the  civil  sei'vice,  that  he  could  no  longer  eonsent  to  retain 
try  by"*      them  as  liis  advisers,  and  that  tliey  would  remain  in  office 
Governor    only  until  their  successors  were  appointed. 
"'''^"  Freely  admitting   that  the  gover)ior,  in  his  capacity  of 

commander-in-chief,  '>  is  bound  on  military  matters,  as  on  all 
others,  to  take  the  advice  of  ministers,  who  have  practically 
the  same  power  of  control  as  her  Majesty's  ministers  exercise 
over  the  army  in  England  ;  "  and  that  '■'  through  the  governor 
and  regular  gradation  of  military  subordination,  every  one 
of  her  Majesty's  officers  and  soldiers  on  active  service  in  the 
country,"'  ''without  distinction  between  'colonial'  and  'im- 
perial' troops,"  "is  accountable  to  ministers  and  directly 
controlled  by  them,"  —  his  Excellency  nevertheless  protested 
against  the  assumption  by  one  of  his  ministers,  v/itliout  the 
sanction  of  the  Crown  or  of  the  colonial  parliament,  of  the 
position  and  powers  of  a  "minister  of  war,  irresponsible  to 
the  governor,  and  as  a  general  directing  forces  in  the  field 
uncontrolled  by  and  irresponsible  to  any  military  authority."  ^ 
On  Feb.  5  and  11,  Governor  Frere  addressed  despatches 
to  her  Majesty's  secretary  of  state  for  the  colonies,  in  wdiich 
he  narrated  the  preceding  events,  and  mentioned  that  he  had 
entrusted  Mr.  J.  G.  Sprigg,  the  leader  of  the  opposition  in 
the  Assembly,  with  the  task  of  forming  a  new  administra- 
tion. 

In  his  reply,  dated  IMarch  21,  the  colonial  secretary  ex- 
pressed his  full  reliance  on  the  governor's  judgment,  and  did 
not  question  the  propriety  of  his  conduct  in  dismissing  his 
late  ministers,  a  step  which  appeared  to  have  been  unavoida- 
ble. Whilst  endorsing  the  oi)inions  expressed  by  the  gover- 
nor, in  denying  the  right  of  his  ministei-s  to  appoint  an  officer 
unknown  to  the  constitution,  unauthorized  by  parliament, 
and  in  opposition  to  the  judgment  of  the  governor,  and  to 
assign  to  him  functions  which  would  give  him  paramount 
authority,  greater  than  that  of  the  governor  himself,  in  mili- 
tary matters,  the  secretary  proceeded  to  point  out  that  the 
peculiar  position  occupied  by  the  governor,  as  the  queen's  high 


mr 


''The    points    hichided    in    the  inent  in  Jnly,  1878.     (CmnmonR  P<a- 

above  paijes  are  extracted  and  epi-  pers,   1878,  C.  2070,  2100,   2111), 

toniizcd  from  tlic  voliiininons  cor-  and  to  tlie  Cape  Assembly,  in   May 

respondenoe  on    tlie   subject  which  of  the  same  year.     Cape  Assembly 

was  presented  to  the  Imperial  Parlia-  Votes,  1878,  anne^.  A.  2,  4-0. 


;^2i. 


i  m 


DNIES. 

b  to  retain 
1  in  office 

ipacity  of 
,  as  on  all 
practically 
rs  exercise 
e  governor 
every  one 
■vice  in  the 
'  and  'im- 
k1  directly 
IS  protested 
//ithout  the 
lent,  of  the 
ponsible  to 
in  the  field 
uthority."  ^ 
.  despatches 
3S,  in  which 
that  he  had 
)position  in 
administra- 

'cretary  ex- 
■nt,  and  did 
missing  his 
1  unavoida- 
I'  the  gover- 
it  an  ofiicer 
iparliament, 
jnor,  and  to 
paranionnt 

ielf,  in  niiii- 
11 1  that  the 
Ineen's  high 


hnminons  Vn- 

[2100,  2U\), 

ibly,  in  ^I'ly 

\[M\  Assembly 

L.  2,  4-0. 


CONTUOL  OVER  MILITARY  AND  NAVAL  MATTERS.       287 

commissioner,  with  powers  in  respect  to  adjacent  territories 
which  were  not  limited  hy  tlie  system  of  responsible  govern- 
meit,  as  established  at  the  Cape,^  entitled  him  to  special  con- 
sideiation  and  authority,  in  respect  to  his  lawful  endeavours 
to  preserve  peace  in  her  Majesty's  possessions  in  South 
Africa,  'ind  to  prevent  any  irruption  of  hostile  tribes  into 
those  i)ossessions.  It  was  therefore  the  more  surprising  that, 
when  differences  of  opinion  arose  as  to  the  proper  conduct 
of  the  war,  the  local  ministry  should  have  hesitated  to  yield 
their  opinions  to  tliose  expressed  by  the  governor. 

''In  civil  matters  lying  entirely  within  the  Cape  colony,  I 
desire  of  court^e  that  the  responsibility  of  your  ministers,  for 
the  time  being,  should  be  as  full  and  complete  as  in  other 
colonies  under  the  same  foi-m  of  government,  but  in  affairs 
such  as  those  in  which  you  luive  been  recently  engaged,  your 
functions  are  clearly  defined  by  the  terms  of  your  commis- 
sion." In  conclusion,  the  secretary  of  state  declared  it  to  be 
"  of  the  first  importance  that  the  earliest  possible  opportu- 
nity should  be  taken  of  affording  such  full  explanations  to 
your  parliament  as  may  enable  a  clear  and  impartial  judgment 
to  be  formed  upon  the  course  adopted."  '" 

In  the  opinion  of  the  governor,  concurred  in  by  his  new 
ministers,  the  state  of  public  business  did  not  admit  of  i)ar- 
liament  assembling  before  May  10.  This  day  was  accord- 
ingly chosen.  On  the  very  day  parliament  opened,  papers 
and  correspondence  respecting  the  dismissal  of  the  Molteno 
ministry  were  laid  before  the  Cape  parliament. 

Meanwhile,  the  new  premier,  Mr.  Sprigg,  in  his  address  to  Harmony 
Ins  constituents  upon  his  acceptance  of  office,  justified  the  [,^^^*,"l.w 
act  of  the  governor  in  dismissing  the  preceding  administra-  miulstry. 
tion,  on  the  ground  that,  in  the  opinion  of  his  Excellency, 
they  were  endeavouring  to  carry  on  the  government  by  un- 


'  The  office  of  queen's  high  com- 
missioner for  South  Africa,  as  we 
liave  elsewhere  shown,  was  held 
by  the  governor  of  Cape  Colony  un- 
der a  separate  commission,  which 
vested  peculiar  and  very  extensive 
powers  in  the  holder  thereof.  (See 
ante,  p.  72. )  This  office  was  not  ne- 
cessarily conferred  upon  the  gover- 
nor of  the  Cape:  in  Alay,  1879  (Sir 


Bartle  Frere  continuing  in  office  as 
governor  and  high  oonimissioner  of 
the  Cape  of  Good  Hope  and  adja- 
cent "-erritories).  General  Sir  (Tar- 
net  Wolseley  was  appointed  high 
commissioner  for  the  eastern  portion 
of  South  Africa.     See  post,  p.  294-. 

'"Commons    Papers,    1878,    C. 
2079,  p.  124. 


288       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


constitutional  means,  to  which  he  could  not  assent;  —  "that 
while  acknowledging  the  governor  to  be  commander-in-chief 
of  the  imperial  troops  in  the  colony,  it  was  contended  that 
his  Excellency  did  not  hold  that  position  with  reference  to 
the  colonial  forces,  and  that  the  ministry  were  entitled  to 
direct  the  movements  of  the  colonial  forces,  not  by  way  of 
advice  to  the  governor,  but  upon  their  own  responsibility 
alone,  so  that  the  governor  and  the  general  commanding  her 
Majesty's  forces  were  kept  in  ignorance  of  the  proposed 
movements  of  the  colonial  forces,  no  joint  action  taking  place, 
but  each  branch  of  the  military  forces  in  the  country  working 
in  ignorance  of  the  plans  and  intentions  of  the  other." 

Mr.  Sv3rigg  declared  his  conviction  "  that  the  only  chance 
of  carrying  on  the  war  successfully  was  by  the  different 
branches  of  the  government  working  in  harmony.'  For  his 
own  part,  he  said,  that  he  was  in  unison  with  the  governor 
"  as  to  the  proper  and  constitutional  course  to  be  pursued." 
The  future  conduct  of  the  war  would  rest  with  himself,  as 
premier ;  the  governor  had  j)laced  in  his  hands  the  imperial 
equally  with  the  colonial  troops.  To  ensure  unity  of  action, 
he  had  adopted  the  following  method.  He  meets  the  gover- 
nor and  the  general  commanding  the  forces  in  the  executive 
council,  from  time  to  time.  The  heads  of  the  colonial  forces 
are  invited  to  assist  in  these  deliberations  ;  and,  upon  the  joint 
authority  of  the  governor  and  of  the  premier,  the  general  is 
instructed  what  to  do.  The  general  is  placed  in  chief  com- 
mand over  the  colonial  as  well  as  the  imperial  troops.  All 
military  reports  are  made  to  the  general,  who  communicates 
the  substance  of  them  to  the  premier.  The  commander  of 
the  colonial  forces  reports  direct  to  the  premier.  This 
arrangement,  he  believed,  would  ensure  harmonious  co- 
operation between  the  civil  and  military  authorities  in  a 
constitutional   manner.^ 

It  should  be  added  that,  in  conformity  with  the  "  Regulations 
of  the  Colonial  Service,"  above  cited,"  the  genci.al  commanding 
her  Majesty's  forces  reports  direct  to  the  secretary  of  state 
for  war  upon  questions  concerning  the  imperial  troops  under 
his  command ;  but  that  he  afterwards  sends  a  copy  of   his 


b 


n  Commons  Papers,  1878,  p.  101. 


o  See  ante,  p.  276. 


miimlKmm 


ES. 

-"that 
n-chief 
id  that 
!iice  to 
tied  to 
way  of 
sibility 
ing  her 
roposed 
V  place, 
t^oiking 

chance 
ifferent 
For  his 
overnor 
irsued." 
iself,  as 
mperial 
action, 
;  gover- 
cecutive 
il  forces 
he  joint 
3neral  is 
ief  com- 
ps.     All 
unicates 
mder  of 
.      This 
ious    co- 
les in  a 


Tulations 
manding 
of  state 
iH  under 
y  of   his 


re. 


CONTROL  OVER  MILITARY  AND  NAVAL  ALA.TTERS.       289 

despatches  on  military  operations  in  the  colony  to  the  gover-  Conduct 
nor,  for  his  consideration  and  approval.!'  nor^FrcTc 

The  papers  transmitted  to  the  Cape  parliament  by  the  go-  impugned, 
vernor,  in  explanation  of  the  events  which  led  to  the  dismissal 
of  the  Molteno  ministry,  were  far  more  detailed  and  complete 
than  would  be  desirable  under  ordinary  circumstances,  or 
than  was  in  accordance  with  English  precedent.  But  the  new 
ministry  were  of  opinion  that  a  full  and  unreserved  publica- 
tion of  this  correspondence  was  necessary,  in  order  to  justify 
their  own  act,  in  coming  forward,  at  a  very  serious  crisis  and 
at  great  disadvantage  to  themselves,  to  save  the  colony  from 
the  most  serious  disasters.  Moreover,  no  form  of  proceeding 
is  followed  in  the  Cape  legislature  analogous  to  an  address  in 
reply  to  the  speech  from  the  throne,  nor  any  irailar  conve- 
nient opportunity  afforded  for  ministerial  explanations  or  for 
preliminary  trials  of  party  strength.^ 

After  the  presentation  of  these  papers  to  the  Cape  Assem- 
bly, Mr.  Merriman,  a  prominent  member  of  the  late  ministry, 
moved  to  resolve :  (1.)  That,  in  the  opinion  of  this  house,  the 
control  over  the  colonial  forces  is  vested  in  his  Excellency  the 
governor  only  acting  under  the  advice  of  ministers  ;  (2.)  That 
it  was  not  within  the  constitutional  functions  of  his  Excellency 
the  governor  to  insist  on  the  control  and  supply  of  the  colo- 
nial forces  being  placed  under  the  military  authorities,  except 
with  the  consent  of  ministers  ;  (3.)  That  the  action  taken  by 
his  Excellency  the  governor  in  that  matter  has  been  attended 
with  results  prejudicial  to  the  colony,  and  has  delayed  the 
termination  of  the  rebellion. 

This  motion  led  to  a  protracted  debate,  at  an  early  stage  of 
which  Mr.  Speaker  called  attention  to  it,  and  ruled  "  that  the 
second  and  third  paragraphs  thereof  could  not  be  entertained 
by  the  house  in  the  form  in  which  they  were  presented,  it 
being  contrary  to  constitutional  principle  and  parliamentary 
practice  to  move  any  direct  censure  on  his  Excellency  the 
governor  as  the  representative  of  the  sovereign,  and  it  being 
held,  by  the  authorities  on  parliamentary  government,  that 
the  ministry  in  office  are  responsible  for  the  action  of  his  Ex- 
cellency the  governor."     After  discussion,  the  order  of  the 


p  Commons  Papers,  1878,  C.  2079,  p.  Ill;  C.  2100,  p.  19, 
0  Ibid.  C.  2079,  p.  175. 

19 


K' 


^1 


290       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


;J!( 


Ilis  action 
approved 
l>y  the 
Cape  as- 
sembly. 


day  for  resuming  the  debate  on  Mr.  Merriman's  motion  was 
read,  whereupon  Mr.  Speaker  stated  that,  according  to  the 
ruling  he  had  just  submitted  to  the  house,  only  the  first  para- 
grapli  of  the  said  motion  was  at  present  before  it.  The 
debate  on  the  first  paragraph  was  then  resumed."^ 

^t  a  later  sitting  of  the  Assembly,  leave  was  obtained  by 
Mr.  Merriman  to  amend  his  motion,  by  the  reintroduction 
of  the  second  paragrajjh  (merely  changing  tlie  word  "  was  " 
into  '•'■  is"),  and  by  substituting  for  the  third  paragra 
following  in  lieu  thereof,  "  Tliat  the  assumption  of  the  com- 
mand of  colonial  forces  by  Sir  A.  Cunynghame  [her  Majesty's 
general  in  command  of  the  regular  troops  in  South  Africa] 
in  January  last,  contrary  to  the  advice  of  ministers,  was  not 
justified  or  advisable  under  the  existing  circumstances."  To 
this  motion,  an  amendment  was  moved  to  resolve  that  "  the 
liouse,  having  before  it  the  papers  connected  with  the  late 
change  of  ministry,  does  not  see  that  the  doctrine  that  the 
governor  controls  the  colonial  forces  under  the  advice  of  his 
ministry  has  been  called  in  question  hy  the  governor,  but,  on 
the  contrary,  is  strongly  affirmed  ;  and  the  house  is  of  opinion 
that,  under  all  the  circumstances  of  the  case,  the  removal  from 
office  of  the  late  ministry  was  unavoidable."^ 

On  June  6,  1878,  the  foregohig  amendment  was  agreed  to, 
on  a  division,  by  a  vote  of  thirty-seven  to  twenty-two  ;  a  vote 
which  was  the  more  decisive  in  recording  the  sense  of  the 
house  in  favour  of  the  new  administration,  from  the  fact  that, 
in  the  preceding  session,  the  Molteno  ministry  had  been  able 
to  command  a  good  working  majority.* 

Mr.  Merriman's  motion  ingeniously  evaded  the  actual  facts 
of  the  case  in  relation  to  the  dismissal  of  the  Molteno  minis- 
try. It  made  no  reference  to  the  avowed  reasons  which  had 
induced  the  governor  to  change  his  constitutional  advisers, 
and  refrained  from  raising  a  distinct  issue  condemnatory  of  the 
circumstances  under  which  the  new  administration  had  ac- 
cepted office.  This  issue  was,  however,  directly  embodied  in 
the  words  of  the  amendment,  agreed  to  by  the  house,  which 
declared  that,  "under  all  the  circumstances  of  the  case,  the  re- 
moval from  office  of  the  late  ministrv  was  unavoidable." 


nm 


>■  Cape  Assembly  Votes  and  Proceedir  ••«,  May  29,  1878. 

»  Commons  Papers,  1878,  C.  2144,  p.  liHj. 

*  Cape  Assembly  Votes,  1Q77 ,  passim ;  ibid.  1878,  p.  94. 


m>»matjm:sms^ff'^f^-* 


LONIES. 

motion  was 
lincf  to  the 
e  first  para- 
re  it.     The 

tbtained  by 
iitroductioD. 
ord  "  was  " 
agra 

•f  the  com- 
r  INIajesty's 
th  Africa] 
\s,  was  not 
rices."     To 

that  "  the 
;h  the  late 
e  that  the 
vice  of  his 
or,  but,  on 

of  opinion 
noval  from 

agreed  to, 

vo  ;  a  vote 

nse  of  the 

fact  tliat, 

been  able 

tual  facts 
no  minis- 
vhicli  had 
advisers, 
ory  of  the 
1  had  ac- 
bodied  in 
se,  which 
se,  the  re- 
>le." 


14. 


CONTROL  OVER  MILITARY  AND  NAVAL  MATTERS.       291 

Governor  Frere's  sentiments  in  respect  to  Mr.  Merriman'a 
resolutions  are  expressed  in  his  despatch  to  the  colonial  secre- 
tary, dated  May  21,  1878.  These  resolutions,  he  observes, 
"are  well  calculated  to  embarrass  the  present  ministry,  whilst 
raising  no  issue  directly  implicating  thom.  To  the  lirst  reso- 
lution no  reasonable  objections  can  be  offered  on  constitutional 
grounds  :  ...  it  is  a  simple  truism.  It  may  be  said  tliat  tiie 
second  resolution  is  a  necessary  coro'.lary  from  the  lirst,  pro- 
vided the  true  version  of  tiie  facts  which  took  place  be  ac- 
cepted. IJut  1  have  no  reason  to  suppose  that  this  is  the 
meaning  intended  by  the  framer  of  the  resolutions.  He 
probably  intends  to  imply  that  the  governor  insisted  on  the 
control  and  supply  of  the  colonial  forces  being  placed  under 
military  authorities,  witiiout  the  consent  of  ministers,  and 
that  in  so  doing  the  governor  exceeded  his  constitutional 
functions.  This  would,  however,  be  quite  inconsistent  with 
facts,  as  I  read  them.  It  is,  I  believe,  the  constitutional  duty 
of  the  governor  and  commander-in-chief  to  guard  against  such 
a  dangerous  anomaly  as  a  divided  command  of  military  forces, 
operating  for  a  common  object,  in  one  area  of  operations  ,  and 
if  ministers  insisted  on  such  a  divided  command,  it  would,  I 
believe,  be  the  governor's  duty  to  prevent,  by  all  constitutional 
means  in  his  power,  their  imperilling  the  safety  of  the  state 
by  any  sucli  division  of  authority  and  responsibility.  But,  as 
a  matter  of  fact,  in  what  was  actually  done  by  the  governor 
in  the  present  case,  I  can  see  no  unconstitutional  proceeding 
whatever,  unless  Mr.  Merriman  is  prepared  to  deny  the  con- 
stitutional power  of  the  governor  to  inform  ministers  tliat 
they  have  lost  his  confidence,  and  to  summon  other  ministers 
to  office,  subject  to  the  necessity  of  their  securing  the  support 
of  parliament."" 

From  the  first  outbreak  of  the  war,  the  command  of  all 
colonial  forces  in  the  field  was,  with  the  consent  of  ministers, 
vested  in  General  Sir  Arthur  Cunynghame.  It  was  not  until 
four  months  afterwards  that  the  governor  had  any  formal  and 
conclusive  intimation  of  their  intention  to  adopt  a  different 
course  of  proceeding.  He  "  then  exercised  his  undoubted 
constitutional  function  of  informing  ministers  that  they  had 
lost  his  confidence,  and  that  they  only  held  office  until  their 


il 


ii 


»  Commons  Papers,  1878,  C.  2079,  p.  240. 


1 

ll 

1 

I 

til 

1 

II 

w 

1m(> 

i 

c 

1 

m 

1 

III 

m 

Ml 

I 

I 


292       TAllLIA^rENTARY  GOVERNMENT  IN  THE  COLONIES. 

successors  could  be  appointed.  Their  successors  were  ap- 
pointed, and  entirely  concurred  in  the  "  action  taken  by  the 
governor/ 

In  a  subsequent  despatch  to  the  colonial  secretary,  dated 
June  18,  1878,  Governor  Frere  rejiorted  the  decision  of  the 
Cape  Assembly  upon  Mr.  Merrinian's  resolutions,  and  made 
mention  of  the  general  approval  expressed  by  tlie  colonial 
press  of  the  result,  which  amply  justified  ''  the  position  of  the 
Assembly  as  the  constitutional  guardian  of  tlie  rights  of  the 
colony."  He  adds:  "After  such  a  decisive  expression  of 
tlie  o})inion  of  the  Assembly  and  of  the  country,  it  is  hardly 
necessary  that  I  should  further  discuss  the  constitutional 
question.  Her  Majesty's  government  will,  I  trust,  be  now 
satisfied  that,  in  the  extreme  step  taken,  I  did  not  go  l)eyond 
what,  in  the  estimation  of  the  colony  and  its  representatives, 
was  necessary  to  uphold  the  authority  of  the  Crown,  as  con- 
stitutional head  of  all  the  armed  forces  of  the  colony,  and 
guardian  of  the  rights  of  the  people  against  unconstitutional 
encroachments  of  any  kind,  when  circumstances  did  not  admit 
of  an  immediate  appeal  to  the  parliament  of  the  colony."  ^ 

In  reply  to  the  foregoing  despatch,  the  secretary  of  state 

for  the   colonies,  in  a  despatch  dated  July  25,  1878,  states 

proved  by    that  he  "  learus  with  much  satisfaction  that  the  colonial  ijar- 

1*1 

secretary.  Ihiment  has  expressed,  in  a  decisive  manner,  its  approval  of 
the  action  which,  reluctantly,  and  und  z  very  peculiar  cir- 
cumstances, you  had  found  yourself  obliged  to  take  with  re- 
spect to  your  late  ministry."  He  concludes  by  saying  :  "  It 
affords  me  great  pleasure  to  convey  to  you,  on  the  part  of  her 
Majesty's  government,  their  warm  approval  of  your  conduct, 
both  generally  and  in  this  particular  case,  and  their  thanks 
for  your  unceasing  and  successful  efforts  to  reduce  to  order 
that  administrative  system  which  you  found  wholly  unequal 
to  the  requirements  of  a  grave  emergency."  " 

Apart  from  the  value  of  the  preceding  case,  in  the 
ligl't  which  it  reflects  upon  the  constitutional  relations 
of  a  governor  towards  his  responsible  advisers,  it  is  also 


Governor 
Frcre's  aC' 
tion  ap- 


^  Commons  Papers,  1878,  pp.  240,  241.     And  see  the  Nineteenth 
Century  for  December,  1878,  p.  1060. 

"^  Commons  Papers,  1878,  C.  2144,  p.  197. 
*  Ibid.  p.  243. 


p'^-'j 


CONTROL  OVER  MILITARY  AND  NAVAL  MATTERS.       293 

useful  as  indicating  the  proper  steps  which  should  be 
taken  to  "  uphold  the  authority  of  the  Crown  as  consti- 
tutional head  of  all  the  armed  forces  "  in  a  British 
colony. 

In  alTairs  of  peace  and  war,  which  are  essentially  of 
imperial  concern,  the  supremacy  of  the  Crown  must 
be  everywhere  maintained  inviolate.  The  governor  in 
every  colony  is  the  representative  of  the  sovereign 
in  the  administration  of  this  prerogative  ;  but  he  him- 
self must  be  careful  that  he  acts  in  such  matters  in 
obedience  to  his  instructions  from  her  Majesty's  govern- 
ment. 

Not  long  after  the  satisfactory  conclusion  of  the  con- 
troversy between  Sir  Bartle  Frere  and  his  ministers, 
another  difficulty  presented  itself  between  the  governor 
and  the  secretary  of  state. 

The  Kaffir  war  had  assumed  larger  dimensions.  Other 
warlike  tribes  had  engaged  therein,  and  Governor  Frere 
had,  of  his  own  accord,  assumed  the  responsibility  of 
measures  which  precipitated  a  conflict  with  the  Zulu 
tribes  on  the  northern  frontier  of  South  Africa. 

Great  loss  of  life,  and  a  frightful  expenditure  of  public 
money  had  been  incurred  in  this  war,  and  the  prospect 
of  a  speedy  and  successful  termination  of  it  appeared 
to  be  remote  and  uncertain. 

At  this  juncture,  the  attention  of  the  Imperial  Parlia- 
ment was  aroused  to  the  perils  of  the  situation.  Votes 
of  censure  upon  Sir  Bartle  Frere  and  upon  the  govern- 
ment who  were  responsible  for  his  continuance  in  office, 
were  proposed  in  both  houses,  and  though  they  were 
negatived,  —  in  the  House  of  Lords  by  an  overwhelm- 
ing majority,  and  in  the  House  of  Commons  by  a  ma- 
jority less  than  that  which  the  administration  generally 
commanded,  —  yet  ministers  were  obliged  to  admit  that 
Sir  Bartle  Frere  had  taken  upon  himself  a  responsibility 
in  excess  of,  if  not  contrary  to,  his  instructions,  in  virtu- 


Supronia- 
cy  of  tlif 
Crown  iti 
military 
muttvrt). 


SirB. 
Frere  and 
the  Kudir 
wiir. 


Hi  M 


If 


i 


J.^ 


294       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONILS. 


il 


I'.  H 


ally  declaring  war  against  the  Zulu  king  without  the 
previous  consent  of  the  imperial  government/ 

Under  these  circumstances,  her  Majesty's  government, 
whilst  fully  appreciating  the  great  experience,  ability, 
and  energy,  which  had  been  displayed  by  Sir  Bartle 
Frere  in  the  execution  of  the  extensive  powers  en- 
trusted to  him  as  her  Majesty's  high  commissioner  in 
South  Africa,  were  constrained  to  express  their  regret 
at  his  fitiiure  to  secure  the  previous  sanction  and  autho- 
rity of  the  imperial  government  to  his  proceedings  ;  a 
course  which  they  deemed  to  be  peculiarly  inciunbent 
upon  him,  in  view  of  the  extraordinary  difficulties 
which  had  unexpectedly  presented  themselves  in  the 
prosecution  of  the  war.  Without  desiring  in  the  exist- 
ing crisis  of  affairs,  to  withdraw  the  confidence  hitherto 
reposed  in  Governor  Frere,  —  a  confidence  which  here- 
tofore, as  a  general  rule,  had  been  amply  justified, — 
the  secretary  of  state  was  obliged  to  address  him  in 
terms  of  rebuke,  and  to  express  the  desire  of  her  Ma- 
jesty's government  that  he  should  regulate  his  future 
actions  in  strict  accordance  with  the  instructions  he  had 
received  from  the  Crown  in  relation  to  affairs  in  South 
Africa/ 

Subsequently,  in  order  to  the  more  energetic  con- 
d  lict  of  the  war  against  the  Zulus,  and  the  speedy  resto- 
Woisei'.y.  j.r^t,iQjj  Qf  peace  upon  terms  approved  by  her  Majesty's 
government,  Lieutenant-General  Sir  Garnet  Wolseley 
was  sent  to  South  Africa,  with  the  local  rank  of  general 
in  command  of  all  the  forces  therein,  and  to  act  as 
governor  of  Natal  and  the  Transvaal,  with  a  special  com- 
mission appointing  him  queen's  high  commissioner  in 
those  colonies  and  in  the  lands  adjacent,  in  place  of  Sir 


Appoint 
nienc  of 
General 


y  Hans.  Deb.  vol.ccxiiv.  pp.lGOB,  4,  1878:  March  19,  and  April  10, 

1865.  1879:     Connnons    Papers,    1878, 

'  See  Sir  M.  Ilioks-Reach's  De-  C  2100,  p.  39;  ihiil.  1879,  C.  2260, 

spatches  to  Governor  Frere,  of  April  p.  108,  C.  2316,  p.  36. 


i  f  s  If  i 


►*rjfctS«paE^fe^ 


CONTROL  OVER  MILITARY  AND   NAVAL  MATTERS.       295 


'■I' 


Bartle  Frere,  who  retained  his  position  as  governor  of 
the  Cape  colony  and  queen's  high  commissioner  else- 
where.* This  change  was  eminently  successful.  The 
war  was  brought  to  a  speedy  close  by  the  complete 
triumph  of  the  British  arms;  md  at  the  same  time,  the 
object  persistently  aimed  at  by  Sir  Bartle  Frere,  namely, 
to  obtain  adequate  security  for  the  protection  of  the 
British  colonies  in  South  Africa  against  native  aggres- 
sion, was  achieved  by  the  entire  subjugation  of  the 
hostile  tribes. 

Within  the  past  twenty  years  a  fundamental  change 
has  been  eftected  in  the  administration  of  the  British 
colonies  by  the  withdrawal  of  the  imperial  troops,  pre-  Colonial 
viously  scattered  throughout  every  part  of  the  empire,  defence. 
and  the  consequent  devolution  upon  the  self-governing 
colonies  of  the  responsibility  of  self-defence. 

This  important  reform  originated  in  the  report  of  a 
departmental  committee  in  1859,  which  consisted  of 
Mr.  Hamilton  of  the  treasury,  Mr.  Godley  of  the  war 
office,  and  Sir  T.  Elliot  of  the  colonial  office.  The  year 
preceding  the  appointment  of  this  committee,  our  mili- 
tary expenditure  in  the  colonies  amounted  to  nearly 
four  million  pounds  sterling,  to  which  the  colonies  con- 
tributed something  under  £380,000,  and  few  of  the  colo- 
nies had  any  effiictive  militia  or  local  force  of  their  own. 

The  report  of  this  committee  ably  pointed  out  the 
injurious  consequences  entailed  by  this  policy,  in  the 
burden  which  it  imposed  upon  the  imperial  treasury, 
and  in  its  hindering  the  development  in  the  colonies  of 
a  proper  spirit  of  self-reliance,  and  a  willingness  to  share 
in  the  responsibility  of  maintaining  intact  their  free 
institutions  and  their  national  existence.*' 


•  li 


irJ 


■'  <J 


•  liana.  Deb,    vol.   ccxlvi.    pp.         ''  Commons  Papers,  1860,   vol. 

1204,     112G2.      Commons     Papfirs,  xli.   p.   573.      Adderley's  Colonial 

1879,  C.  2318,  appx.  and  C.  2374,  Policy,  p.  380. 
p.  10. 


I 


3! 


Military 
«lefence  of 
the  colo- 
uies. 


296       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

The  departmental  committee,  however,  were  unable 
to  agree  upon  any  definite  conclusions  on  this  question. 
Accordingly,  in  1861,  upon  the  motion  of  Mr.  Arthur 
Mills,  the  House  of  Commons  appointed  a  select  com- 
mittee of  their  own,  to  inquire  and  report  whether  any 
and  what  alterations  might  be  advantageously  adopted 
in  regard  to  the  defence  of  the  British  dependen- 
cies, and  the  proportions  of  cost  of  such  defence  as 
now  defrayed  from  imperial  and  colonial  funds  respec- 
tively. The  government  gave  a  reluctant  consent  to 
the  appointment  of  this  committee,  which,  after  taking 
voluminous  evidence,  reported  before  the  close  of  the 
session." 

Their  report,  likewise,  was  not  conclusive.  In  fact, 
the  labours  of  the  committee  were  aptly  characterized 
as  being  chiefly  valuable  in  furnishing  information, 
promoting  discussion,  and  exhibiting  the  discordance 
.and  inconsistency  of  opinion  on  the  subject,  rather  than 
as  advising  any  practicable  policy.** 

The  House  of  Commons,  however,  on  March  4,  1862, 
upon  motion  of  Mr.  Arthur  Mills,  resolved,  without  a 
division,  "  that  this  house  (while  fully  recognizing  the 
claims  of  all  portions  of  the  British  empire  to  imperial 
aid  in  their  protection  against  perils  arising  from  the 
consequences  of  imperial  policy)  is  of  opinion  that 
colonies  exercising  the  rights  of  self-government  ought 
to  undertake  the  main  responsibiHty  of  providing  for 
theii  own  internal  order  and  security,  and  ought  to 
assist  in  their  own  external  defence." 

Thenceforward,  the  principle  embodied  in  the  fore- 
going resolution  was  adopted  by  every  successive  ad- 
ministration as  the  settled  policy  of  the  empire."  It 
has  been  generally  agreed  that  a  steady  endeavour  to 


e  Commons  Papers,  1861,  vol.  xiii.  p.  69. 
1  See  Todd,  Piul.  (iovt.  vol.  i.  p.  '27;'). 
'  Adderley,  Col.  Policy,  pp.  30,  40,  388. 


f^jxjnmi**  uapjv^jaMS'y  H^i 


ONIES. 

^e  unable 
question, 
r.  Arthur 
lect  com- 
ither  any 
'  adopted 
ependen- 
jfence  as 
Is  respec- 
onsent  to 
er  taking 
se  of  the 

In  fact, 
acterized 
)rmation, 
icordance 
ther  than 

4,  1862, 
ithout  a 

Hzing  the 
imperial 
Tom  the 

ton    that 

it  ought 

ing  for 

)ught  to 

le  fore- 
sive  ad- 
ire.^  It 
ivour  to 


CONTROL  OVER  MILITARY  AND  NAVAL  MATTERS.       297 

throw  more  and  more  upon  the  colonies  the  obligation 
of  defending  themselves,  was  a  policy  which  Parliament 
would  support  and  the  nation  approve,  and  one,  more- 
over, that  would  eventually  be  accepted  as  the  best 
both  for  the  colonies  and  for  the  mother  country. 

Accordingly,  in  debates  upon  this  subject  which  arose  Nowun- 
in  Parliament  annually  from  1867  to  1870,  ministers  by^^Shem. 
were  in  a  position  to  state  that  the  troops  were  being  ^^^'''^^' 
gradually  withdrawn  from  all  the  leading  colonies  in 
North  America,  Australia,  and  elsewhere,  until,  in  1873, 
the  under-secretary  of  the  colonies  was  able  to  an- 
nounce "  that  the  military  expenditure  for  the  colonies 
was  now  almost  entirely  for  imperial  purposes."  ^ 

The  fears  entertained  by  many  that  the  withdrawal 
of  the  British  regiments  would  operate  disastrously  in 
the  colonies,  by  engendering  a  spirit  of  discontent  and 
disaffection,  have  not  been  realized.  Throughout  the 
colonies  generally,  much  has  been  done  for  the  organi- 
zation and  training  of  local  military  forces  and  for  effi- 
cient protection  from  foreign  aggression.  More  than 
this,  both  in  Canada  and  in  Australia  a  spirit  of  loyalty 
and  of  patriotism  has  increased  rather  than  diminished 
since  the  necessity  for  local  self-defence  has  been  im- 
posed on  these  flourishing  communities.  Canada,  for 
example,  has  successfully  repelled  repeated  invasions 
of  lawless  Fenians  from  the  adjacent  states ;  and  when 
it  became  needful  for  Great  Britain  to  put  forth  her 
strength  in  the  war  with  Russia  in  1854-55,  and  in  the 
Eastern  war  in  1878,  voluntary  offers  were  sent  from 
Canada  and  from  Australia  to  raise  and  equip  regi- 
ments for  imperial  service.* 


i 


'  Hans.  Deb.  vol.  ccxiv.  p.  1531.  such  a  complete  military  and  scien- 
8  See  Canada  Stsss.  I'apers,  1871,  tific  education  to  young  men  belong- 
no.  7;  and  no.  12,  p.  41.  Within  ing  to  the  country  as  would  qualify 
tl)('  parittliree  years,  a  royal  military  them  to  fill  all  the  higher  positions 
college  has  been  established  in  Ca-  in  the  Canadian  military  service, 
nada,  for  the  purpose  of  securing  The  training  and  general  branches 


i 


''i 


1 


'  ! 


Imperial 
aid  to- 
wards co- 
lonial de- 
fence. 


298       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

On  the  other  hand,  whilst  giving  effect  to  this  altered 
policy  in  respect  to  the  military  defence  of  the  colo- 
nies, her  Majesty's  government  were  not  unmindful  of 
their  duty  to  aid  the  colonies  in  assuming  this  new 
responsibility  of  organizing  such  military  and  naval 
forces  as  might  be  adequate  for  their  protection  and 
defence.  The  barracks  and  fortifications  vacated  by 
the  imperial  troops,  together  with  the  landed  property 
of  the  war  department  attached  to  them,  and  the  arms 
and  munitions  of  war  in  actual  use,  were  handed  over  to 
the  colonial  authorities ;  but  with  this  condition,  that,  if 
at  any  future  period  troops  should  be  sent  to  the  colony 
at  their  request  or  in  furtherance  of  colonial  interests, 
suitable  accommodation  should  be  provided  for  them, 
to  the  satisfaction  of  her  Majesty's  government.  This 
condition  was  accepted,  and  the  transfer  was  made  ac- 
cordingly.'' 

Furthermore,  the  imperial  government  have  been 
sedulous  to  secure  the  efficient  defence  of  all  the 
British  colonies  from  external  attack.  Eminent  engi- 
neer officers  have  been  employed  by  the  war  office  on 
this  special  service,  in  different  parts  of  the  empire. 

In  1803,  Colonel  (afterwards  Major-General  Sir) 
W.  F.  D.  Jervois  was  sent  to  Canada,  New  Brunswick, 
Nova  Scotia,  and  Bermuda,  to  report  on  the  state  of 
the  defences  of  those  colonies ;  and  again  in  the  follow- 
ing year  to  confer  wath  the  Canadian  government  on 
that  subject.  His  proposals  were  approved  by  the  im- 
perial and  colonial  gove  iments,  and  have  since  been 
partially  carried  out.' 

In  1865,  at  the  invitation  of  her  Majesty's  govern- 


in 


of  education  taught  at  this  institu-  and  government  of  the  college,  is- 

tion  are  admirably  suited  to  qualify  sued  in  July,  1879. 

graduates  to  fill  other  positions  in         ^  Canada  Sess.  Papers,  1871,  no. 

the  public  service,  when  military  ser-  40. 

vice  is  not  required.    Kee  the  official         •  Colonial  Office  List,  1879,  p. 

standing-orders  for  the  regulation  374. 


■    l!,,'..!!!^'  "" 


mmrnmrnrmam 


DNIES. 

is  altered 
the  colo- 
indful  of 
this  new- 
id  naval 
!tion  and 
jated  by 
property 
the  arms 
d  over  to 
n,  that,  if 
e  colony 
interests, 
or  them, 
it.  This 
made  ac- 

ve  been 
all  the 
nt  engi- 
office  on 
pire. 
al  Sir) 
ins  wick, 
state  of 
3  follow- 
nent  on 
the  im- 
3e  been 

govern- 

ollege,  is- 
1871,  no. 
1879,  p. 


CONTROL  OVER  MILITARY  AND  NAVAL  MATTERS.       299 

ment,  a  deputation  of  four  Canadian  ministers  proceeded  Defence 
to  England  to  confer  with  the  imperial  government  on  *^*^'*°*  *• 
the  subject  of  the  defence  of  Canada.  Certain  conclu- 
sions were  arrived  at ;  but  it  was  agreed  to  defer  any 
action  thereupon,  until  the  settlement  of  the  then  pend- 
ing question  of  the  confederation  of  British  North  Ame- 
rica, when  it  would  become  the  duty  of  the  government 
and  parliament  of  the  new  dominion  to  make  adequate 
provision  for  the  defence  of  the  country .J 

In  1875,  the  governments  of  New  South  Wales,  South  Austra- 
Australia,  Victoria,  and  Queensland,  applied  to  the  ii^ndaT 
imperial  government  for  professional  advice  and  assist- 
ance in  military  engineering,  for  the  purpose  of  their 
common  security,  in  the  event  of  war  between  Great 
Britain  and  any  foreign  power.  Whereupon,  Sir 
W.  F.  D.  Jervois  and  Lieutenant-Colonel  Scratchley 
wore  authorized  to  examine  the  existing  fortifications, 
ports,  harbours,  and  coast  defences,  in  the  several  Au- 
stralian colonies ;  with  instructions  to  consult  with  the 
local  governments  as  to  the  most  practicable  means  of 
putting  the  same  into  a  state  of  efficiency.  This  ser- 
vice has  been  ably  fulfilled,  and  in  each  colony  it  has 
become  the  duty  of  the  local  government  to  recommend 
to  the  local  parliament  the  necessary  appropriations  for 
the  purchase  of  war-vessels,  the  erection  of  fortifications, 
the  improvement  and  defence  of  harbours,  or  otherwise, 
as  the  case  may  be,  pursuant  to  the  recommendations 
of  these  distinguished  and  experienced  officers."^ 

In  October,  1877,  Sir  William  F.  D.  Jervois  (who,  in  addi- 
tion to  his  duties  in  connection  with  the  special  engineering 
service  above  mentioned,  had  been  appointed  governor  of 
South  Australia)  intimated  to  the  governor  of  New  Zealand 

J  Canada  Leg.  Assem.  Journals,  Assem.  Votes,  &c.  1877-78,  vol.  iii. 

Aug.  9,  1865.  p.     295.     Victoria    Pari.     Papers, 

•t  See  South  Australia  Pari.  Pro.  1877-78,   vol.    iii.    no.    73;    ibid, 

1877,  vol.  i.  p.   2,  and  appx.  no.  1878,  vol.  iii.  nos.  77  and  81. 
240.       New    (South    Wales,    Leg. 


■| 


■«f  i 


300       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


.! 


Defence 
in  New 
Zealand. 


(the  Marquis  of  Normanby)  his  purpose  of  visiting  that  co- 
lony, upon  a  tour  of  inspection  of  the  coasts  .and  harbours 
thereof,  pursuant  to  the  desire  expressed  by  the  preceding 
administration.  To  assist  him  in  this  undertaking,  Sir  W. 
Jervois  requested  that  a  government  steamer  might  be  placed 
at  his  disposal. 

Lord  Normanby  referred  this  request  to  Sir  George  Grey, 
the  premier  of  New  Zealand,  in  order  to  ascertain  the  answer 
which  ministers  desired  should  be  given  to  it.  Whereupon, 
his  Excellency  was  informed  that  the  government  steamer 
was  required  for  other  purposes,  and  could  not  be  spared. 
This  "curt  answer"  was  afterwards  explained  to  mean  that, 
in  the  present  state  of  the  colonial  finances,  ministers  deemed 
it  to  be  inexpedient  to  incur  the  expense  attending  the  pro- 
posed examination  of  the  harbours,  and  preferred  that  the 
inspection  should  be  postponed.  The  governor  consented  to 
convey  this  conclusion  to  Sir  W.  Jervois,  but  expressed  his 
deep  regret  that  his  ministers  should  have  acted,  in  a  matter  of 
public  importance,  in  a  manner  so  "little  calculated  to  raise 
the  credit  of  the  colony  abroad."  He  also  requested  that  the 
correspondence  between  himself  and  the  premier,  on  this  sub- 
ject, should  be  communicated  to  parliament  without  delay ;  a 
request  which  was  immediately  complied  with.^ 

On  December  5,  following,  a  motion  was  made,  in  the  Legis- 
lative Council,  that  it  is  desirable  that  tlie  Council  should  be 
informed  what  are  the  duties  for  which  the  government 
steamer  would  be  required,  so  as  to  render  it  impossible  to 
place  it  at  the  disposal  of  Sir  William  Jervois,  for  the  pro- 
posed examination  of  the  colonial  harbours.  Li  amendment,  it 
was  proposed  to  add  words,  expressing  regret  that  the  present 
government  has  declined  to  give  effect  to  the  arrangement 
made  by  the  governor,  on  the  advice  of  the  preceding  adminis- 
tration, to  obtain  a  report  on  the  defence  of  the  colony  from 
Sir.  W.  Jervois.  Both  motions,  however,  were  by  leave  with- 
drawn.™ 

No  action  was  taken  by  the  House  of  Representatives  upon 
the  governor's  message.     But,  on  December  10,  the  governor 


'  New  Zealand  House  of  Repre- 
sentatives, Journals,  1877,  appx. 
vol.  i.  A.  G. 


»"  New  Zealand  Leg.  Couu.  Jouv. 
1877,  p.  234. 


»( 


!s  ilfiin  niiiii[|  III  ill  'f^t 


Couu.  Jour. 


CONTROL  OVER  MILITARY  AND  NAVAL  MATTERS.       301 

wrote  to  the  secretary  of  state  for  the  colonies,  enclosing  the 
correspondence  with  his  ministers,  and  justifying  his  own 
action  by  expressing  a  wish  that  Sir  VV.  Jervois's  visit  should 
be  postponed,  indefinitely,  rather  'tan  that  his  work  should 
not  be  facilitated,  and  due  considerati.*n  manifested  towards 
him.     This  course  was  approved  by  the  colonial  secretary." 

However,  in  May,  1878,  in  view  of  the  menacing  aspect  of 
affairs  in  Europe,  the  New  Zealand  ministers  applied  to  the 
home  government  for  a  suitable  armament,  for  the  defence  of 
the  principal  harbours  of  the  island,  to  be  supplied  at  the  ex- 
pense of  the  colony,  the  total  cost  of  which  was  estimated  at 
forty-four  tliousand  pounds.  The  local  i)arliament  were  duly 
informed  of  this  proceeding  at  the  opening  of  the  following 
session,  on  July  26,"  and  from  the  last  report  of  the  minister 
of  defence,  dated  July  10,  1879,  it  appears  that  the  volunteer 
spirit  has  spread  widely  through  the  colony,  and  that  military 
organization  was  being  placed  upon  a  more  satisfactory  footing. 

In  connection  with  the  new  imperial  policy  which  Naval  de- 
requires  the  colonies  of  Great  Britain  to  undertal^e  the  the  «)io- 
responsibility  of  their  own  defence,  an  act  was  passed 
by  the  Imperial  Parliament  in  1865,  "to  enable  the 
several  colonial  possessions  of  her  Majesty  the  queen 
to  make  better  provision  for  naval  defence,  and  to  that 
end  to  provide  and  man  vessels  of  war,  and  also  to 
raise  a  volunteer  force  to  form  part  of  the  royal  naval 
reserve,  established  under  the  act  of  Parliament  of  1859 
(22  and  23  Vict.  c.  40),  and  accordingly  to  be  available 
for  general  service  in  the  royal  navy  in  emergency."  ^ 

This  act  empowers  the  colonial  legislatures  to  provide 
at  their  own  cost,  vessels  of  war,  weapons,  seamen,  and 
volunteers,  for  their  own  defence ;  and  permits  the  co- 
lonies to  place  at  the  disposal  of  the  Crown  ships  of 
war  and  seamen  for  imperial  service. 

The  whole  cost  of  such  defensive  operations  to  be 


nies. 


"  New  Zealand  Official  Gazette, 
1878,  p.  912. 

°  New  Zealand  Jour.  July  26, 
1878,  appx.  thereto,  vol.  i.  A.  3. 


And  see  New  Zealand  Pari. 
vol.  XXX.  p.  8-13. 
p  28  Vict.  c.  14. 


Deb. 


li 


. 


'  -i  ■ 


i^ 


i'  I 


\ 


302       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


t! 


In  Aus- 
tralia. 


In  Cana- 
da. 


undertaken  by  the  colonies,  but  the  proposed  arrange- 
ments to  be  made  by  them  in  connection  with  the 
home  government  by  means  of  oraers  in  council. 

The  colonies  of  New  South  Wales  and  of  Victoria 
have  appropriated  considerable  sums  of  money  for  the 
purchase  of  ships  and  munitions  of  war,  and  also  for 
the  formation  of  a  volunteer  naval  brigade;  but,  as  yet, 
very  little  has  been  done  in  the  colonies  generally  to 
carry  out  the  objects  contemplated  by  the  colonial  naval 
defence  act.'i 

The  Canadian  government  possess  some  small  steam 
vessels,  capable  of  service  in  the  Gulf  of  St.  Lawrence, 
for  the  protection  of  the  dominion  fisheries  against  en- 
croachments by  unlawful  depredators.  The  enormous 
number  of  seafaring  men — estimated  at  not  less  than 
eighty-seven  thousand  —  employed  in  these  fisheries 
would,  if  enrolled  in  the  naval  reserve  of  the  empire, 
contribute  greatly  to  the  national  strength.  But  hitherto 
no  practical  measures  have  been  taken  to  organize  this 
valuable  material,  and  to  train  it  for  fffective  service, 
as  contemplated  by  the  imperial  act  of  1859/ 

The  colonial  defence  committee  of  the  imperial  war 
office  have  advised  the  purchase  by  the  dominion  go- 
vernment of  heavy  artillery,  to  be  mounted  on  defen- 
sive works  at  the  principal  Atlantic  seaports.  And  the 
general  officer  in  command  of  the  Canadian  militia  (Sir 
E.  Selby  Smyth),  in  his  fifth  annual  report  to  the  minis- 
ter of  militia,  dated  Jan.  1,  1879,  urges  upon  the  go- 
vernment of  Canada  the  expediency  of  passing  an  act 
through  the  dominion  parliament,  in  pursuance  of  the 
provisions   of  the   colonial   naval   defence   act,  above 


•J  iSee  Lord  Norton's  paper,  in  the  "■  See  the  important  succgestions 
Ninoteentli  Century,  for  July,  1879,  in  Mr.  Brassey's  ]iaper,  referred  to 
p.  177.  And  the  instructive  paper  in  the  previous  note,  and  in  the  dis- 
on  a  Colonial  Naval  Volunteer  cussion  which  ensued  upon  it.  Pro- 
Force,  read  by  Thomas  Brassey,  ceedings  Royal  Col.  Inst.  vol.  ix. 
Esq.,  M.  P.,  before  the  Royal  Co-  pp.  355-385. 
loiiial  Institute,  on  June  7,  1878. 


imtm 


itttfaMMiW 


Mmn^'-j^j---  ~.  3s^~ 


CONTROL  OVER  MILITARY  AND  NAVAL  MATTERS.       303 

mentioned.  He  also  recommends  the  purchase  of 
the  armament  suggested  by  the  colonial  defence  com- 
mittee,—  remarking  that  the  imperial  authorities  had 
already  contributed  liberally  to  the  defence  of  the  Paci- 
fic coast  of  Britisli  Columbia ;  and  that,  if  the  dominion 
government  would  complete  the  work  on  the  Atlantic 
seaboard,  "the  gates  of  Canada,  from  both  the  Atlan- 
tic and  Pacific  oceans,  would  be  pretty  well  locked  and 
bolted."**  In  the  same  report,  this  able  and  experienced 
officer  recapitulates  various  suggestions  —  for  the  perma- 
nent organization  of  the  Canadian  militia  force,  and  in 
regard  to  works  of  defence  —  which  he  had  made  in 
previous  years,  with  a  view  to  solicit  "  the  grave  con- 
sideration of  what  is  due  to  that  state  of  military  pre- 
paration which  the  teaching  of  history  proves  to  be 
incumbent  upon  all  nations."  ^ 

On   Sept.    12,    1879,   a   royal   commission   was  ap-  Royal 
pointed  to  inquire  into  the  condition  and  sufficiency  simTon' 
of  the  means,  both  naval  and  military,  provided  for  the  j*l"'"f^ 
defence  of  the  more  important  seaports  within  our  colo- 
nial possessions  and  their  dependencies,  and  to  report 
as  to  the  stations  which  may  be  required  in  our  colo- 
nies for  refitting  or  repairing  the  ships  of  the  navy,  and 
protecting  our  commerce.     The  report  of  this  commis- 
sion will  be  awaited  with  great  interest,  especially  in 
colonial  and  military  circles. 


i 


w 


fii 


'■I 


as 


■  See  his  report,  Canada  Sess. 
Papers,  1879,  no.  5,  p.  xxiii. 

*  Ibid.  p.  xvii.  See  also  valu- 
able papers,  by  Capt.  J.  C.  11. 
("olomb,  read  before  the  Royal  Co- 
lonial Institute,  in  187:5,  on  Colo- 
nial Defence;  and  in  1877,  on  Im- 
perial and  Colonial  Responsibilities 
in  War:  and  the  ensuing  discus- 
sious  thereou.     Likewise  an  elabo- 


rate paper,  reviewing  the  naval  and 
military  resources  of  the  colonies, 
read  before  the  Iloyal  United  Ser- 
vice Institution,  by  Capt.  J.  C  11. 
Colomb,  in  March  and  April,  1879, 
and  tlie  discussion  thereon,  by  emi- 
nent naval  and  military  officers,  in 
the  Journal  of  the  iustitution,  vol. 
xxiii.  i)p.  413-479. 


1,111 

m 


Koyal  sn- 
prcmacy 
in  Kiiy- 
lurnl. 


304       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

Imperial  Dominion  exercisable  over  Self-governing  Colonies  : 

j.   By  the  supremacy  of  the  Crown^  and  of  the  civil  power  in 

ecclesiastical  matters. 

In  England,  the  supreme  human  authority,  under 
Christ,  in  all  inrisdiction  which  is  of  a  coercive  charac- 
ter, whether  spiritual  or  temporal,  over  all  persons  and 
in  all  causes,  ecclesiastical  as  well  as  civil,  is  vested  in 
the  sovereign." 

The  canons  framed  by  the  Established  Church,  in  her 
convocation  and  synods,  have  no  obligatory  force  until 
they  receive  the  assent  of  the  sovereign,  by  whose  pub- 
lic authority,  as  soon  as  they  are  confirmed  and  ratified 
by  Parliament,  they  become  law,  and  are  binding  upon 
the  subject.  And  not  only  are  all  laws  in  England  which 
have  any  exactive  and  coercive  authority,  whether 
civil  or  ecclesiastical,  acknowledged  by  the  most  emi- 
nent theologians  to  be  the  laws  of  the  sovereign ;  but 
all  courts  wherein  the  law  is  administered,  whether 
ecclesiastical  or  civil,  are,  strictly  speaking,  courts  of 
the  Crown.  This  is  declared  by  the  statute  1  Edward 
VI.,  and  is  fully  set  forth  in  Bishop  Sanderson's  "  Epis- 
copacy not  prejudicial  to  Poyal  Power." " 

The  royal  prerogative  in  relation  to  the  established 
Church  in  England  is  subject,  however,  to  the  control 
of  Parliament.  Nothing  can  be  done  by  the  sove- 
reign, either  with  or  without  the  consent  of  the  clergy, 
to  alter  the  jurisdiction  or  internal  government  of 
the  Established  Church,  except  by  the  sanction  and 
co-operation  of  Parliament.'^ 


°  Church   of  England  Articles,  ^  Printed  in  London,  1G73,  p.  47. 

no.  37;  Canons,  nos.  1,  2,  and  36.  Bishop  Wordsworth,  of  Lincoln,  let- 

IMontagii  Burrows,  Parliament  and  ter  in  "  Guardian,"  Jan.  17,  1877, 

the  Church  of  England,  1875.    Glad-  p.  86. 

stone    on    the   lloyal    Supremacy,  "^  See  Todd,  Pari.  Govt,  in  Eng- 

3d  ed.  1877.  land,  vol.  i.  p.  305. 


I   m 


v,fca«>,^. -^^^  x.TtMiriSno»smmii^' 


■nLii^ii>«.#>. , 


jiP 


SUPREMACY  OVER  ECCLESIASTICAL  MATTERS. 


305 


And  it  is  the  duty  of  Parliament  to  see  that  the  laws 
for  the  settlement  and  discipline  of  the  national  church 
are  duly  enforced ;  and  to  protect  the  church  from  in- 
novations within  its  pale,  as  well  as  from  injuries  with- 
out. But,  hitherto,  Parliament  has  refrained  from  any 
intrusion  into  doctrinal  matters,  which  are  obviously 
beyond  the  province  of  the  legislature  to  discuss  or 
determine/ 

The  rule  of  constitutional  law  which  requires  that  the 
prerogative  of  the  Crown,  in  matters  ecclesiastical,  shall 
be  exercised  within  the  limits  prescribed  by  Parliament 
applies  with  equal  force  to  any  action  of  the  Crown  in 
relation  to  the  national  church  in  the  colonies. 

But,  in  conformity  with  the  principle  of  religious 
equality  which  is  now  recognized  as  governing  all  pub- 
lic acts  of  the  Crown  and  Parliament  which  affect  the 
colonies  of  Great  Britain,  the  Church  of  England  can- 
not be  regarded  as  an  "  established  "  church  in  any 
British  colony.  It  can  claim  no  superiority,  in  the  eye 
of  the  law,  over  other  religious  denominations ;  but, 
equally  with  them,  must  be  considered  as  a  voluntary 
association,  possessing  such  coercive  authority  only 
over  its  members  as  may  be  expressly  conferred  by 
legislative  enactment,  or  obtained  by  common  agree- 
ment with  them  or  with  any  of  them  who  are  placed 
in  ministerirul  office. 

Formerly,  a  different  relation  existed  between  church 
and  state  in  the  British  colonies.  In  Canada,  by  the  Im- 
perial Act  31  Geo.  in.  c.  31,  passed  in  1791,  the  Church 
of  England  was  partially  established,  and  the  "  Pro- 
testant clergy"  thereof  partially  endowed,  by  grants  of 
land  reserved  for  their  support. 

But  this  gave  rise  to  much  strife  and  controversy. 
Presbyterians    and    other    non-episcopal    communions 

^  See  M.  Burrows  on  Parliament  and  the  Church  of  England,  pp.  97, 
101,  129.    Lord  North,  Pari.  Hist.  vol.  xvii.  p.  272. 


Parlia- 
im-ntiiry 
control  in 
c'Cfk'sias- 
tical  luat- 
tors. 


Clerf?}'  re- 
serves in 
Canada. 


.1 


I! 


■i 


if;!! 

If 


n     ]• 


306       TAKLIAMKNTARY  GOVERNMENT  IN  THE  COLONIES. 


The 
church 
disesta- 
blislied 
and  disen- 
dowed in 
the  colo- 
nies. 


claimed  equal  rights,  both  civil  and  religious,  in  the 
British  colonies ;  and  this  claim  could  not  be  withstood 
or  gainsaid.  In  1840,  the  judges  of  England  gave  a 
unanimous  opinion  to  the  House  of  Lords  "  that  the 
words  '  a  Protestant  clergy,'  in  the  Statute  31  Geo.  III. 
c.  31,  are  large  enough  to  include,  and  that  they  do 
include,  other  clergy  than  those  of  the  Church  of 
England."  ^ 

This  opinion  of  the  judges  was  followed  by  the  Im- 
perial Statute  3  and  4  Vict.  c.  78,  to  provide  for  the 
sale  of  the  clergy  reserves  in  Canada,  and  the  distribu- 
tion of  the  proceeds  thereof;  and,  in  1853,  1)y  another 
act  (the  16  Vict.  c.  21),  which  empowered  the 
Canadian  legislature  to  alter  the  appropriation  of  the 
clergy  reserves  under  the  act  aforesaid,  and  to  make 
such  other  provisions  as  might  seem  meet;  provided 
only  that  the  life- interests  of  existing  incumbents 
should  be  respected. 

Accordingly,  in  the  following  year,  the  legislature  of 
Canada  passed  an  act  (the  18  Vict.  c.  2)  which,  after 
making  provision  for  the  payment  of  the  annual  sti- 
pends and  allowances  hitherto  charged  on  the  clergy 
reserves,  during  the  lives  or  incumbency  of  the  existing 
recipients,  enacted  that  the  unappropriated  balance 
should  be  divided  among  the  several  municipalities 
throughout  the  province,  according  to  population. 
This  was  avowedly  done  in  order  "  to  remove  all  sem- 
blance of  connection  between  church  and  state  "  in 
Canada.'' 

The  same  principle  of  disestablishment  and  disen- 
dowment  was  aiterwards  enforced  in  other  British 
colonies. 

y  Mirror  of  Parliament,  May  4,  tory.     By  Sir  Francis  Hincks,  Lon- 

1840.  flon,  1869.     And  see  a  paper  by  the 

«  18  Vict.  c.  2,  sec.  .3.     See  Reli-  Rev.  Edwin  Hatch,  "  A  free  Angii- 

gious  Endowments  in  Canada.    The  can  Church ; "  in  ^lacniillau's  Maga- 

Clergy  Reserve  and  Rectory  Qnes-  zine,  vol.  xviii.  p.  449. 
tious;  a  Chapter  of  Canadian  His- 


MBSSm^? 


—  -  .  ^    -  *•-• 


SUPREMACY  OVER  ECCLESIASTICAL  MATTERS. 


307 


case. 


Consequent  upon  the  decision  of  the  Privy  Council,  Coicnso 
in  March,  18G5,  in  the  case  of  Bishop  Colenso,  which 
declared  that  the  sovereign  had  no  power  to  issue 
letters-patent,  professing  to  create  episcopal  sees,  or  to 
confer  diocesan  jurisdiction  or  coercive  legal  authority 
in  colonies  that  were  in  possession  of  legislative  insti- 
tutions, the  imperial  government  determined  to  issue 
no  more  letters-patent  of  this  description.'* 

Wherever,  throughout  the  British  dominions,  it  has 
been  found  practicable  to  carry  out  the  principle  of 
religious  equality,  —  by  the  disestablishment  of  any 
churches  previously  placed  by  law  upon  a  footing  of 
preference  or  superiority  over  other  religious  bodies, 
and  by  refraining  from  any  exercise  of  prerogative  for 
the  creation  of  ecclesiastical  offices  or  the  appoint- 
ment to  vacant  bishoprics,  —  this  has  since  been 
done. 

In  1869  and  subsequent  years,  the  imperial  govern- 
ment notified  the  governors  of  the  colonies  in  the  West 
Indies,  in  Gibraltar,  in  Australia,  in  the  Mauritius,  and 
elsewhere,  of  their  intention  to  enforce  the  same  prin- 
ciple of  religious  equality,  notwithstanding  that  it 
might  not  have  been  specially  sought  after  in  particular 
colonies.  Thus,  in  Jamaica,  where  the  majority  of  the 
population  objected  on  principle  to  state  endowments 
in  aid  of  religion,  they  have  been  entirely  withdrawn  ; 
whilst  in  Trinidad,  Barbadoes,  Gibraltar,  and  the  Mau- 
ritius, where  there  has  been  a  general  disposition  to 
retain  them,  the  government  have  acquiesced  therein, 
provided  that  the  endow^ment  should  be  distributed 
equally  amongst  all  denominations  who  were  willing  to 
receive  them.  This  policy  is  now  strictly  adhered  to  ; 
and  all  state  connection  in  any  colony,  either  with 
p]piscopal,  Presbyterian,  or  other  churches,  conferring 


•  See  Todd,  Pari.  Govt.  vol.  i.  p.  309. 


y 


308       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


i    I! 


i' 


Episcopal 
organiza- 
tion in  the 
colonies. 


Consecra- 
tion of  co- 
lonial bi- 
sliops  in 
Euglaud. 


upon  them  a  preference  over  other  denominations,  has 
ceased.'' 

It  now  devolves  upon  the  clergy  and  laity  of  the 
Anglican  communion  in  the  several  British  colonies  — 
either  with  or  without  assistance  derived  from  local 
legislation,  as  the  case  may  be  —  to  make  their  own 
arrangemerits  for  securing  an  effective  episcopal  organi- 
zation of  their  respective  churches.  Synods  of  colonial 
churches,  moreover,  cannot  without  statutable  authority 
assume  any  jurisdiction  beyond  that  which  they  may 
exercise  by  the  voluntary  consent  of  their  own  mem- 
bers and  of  the  members  of  the  congregations  in  their 
respective  communions.  In  order  to  clothe  church  syn- 
ods with  necessary  corporate  powers,  it  is  customary  to 
apply  to  the  local  legislatures  for  acts  of  incorporation.''' 

While  tlie  Crown  has  withdrawn  from  any  interfe- 
rence in  the  choice  and  appoiniment  of  colonial  bishops 
it  \s  still  necessary  to  obtain  a  mandate  from  the  so- 
veveign  where  it  is  proposed  to  consecrate  a  colonial 
bi  hop  in  England  by  bishops  of  the  established  church. 
This  mandate,  however,  confers  no  territorial  title  or 
jurisdiction  upon  the  bishop  whose  consecration  it  sanc- 


\f    )■ 


•>  Commons  Papers,  1871,  no. 
26y;  ibid.  1873,  nos.  195,  251);  ibid. 
1874,  no.  257 ;  ibid.  1877,  no.  123. 
And  see  lUHis.  Deb.  vol.  ccxx.  p. 
700;  vol.  ccxxviii.  p.  707;  vol. 
cexxx.  p.  1399.  In  1873,  the  iin- 
periiil  fTovernment,  in  {iccordance 
with  their  policy  in  rejjard  to  reli- 
gious (MidownuMits,  resolved  to  sever 
the  conucjtioii  which  heretofore  ex- 
isted betwecMi  the  Crown  and  chap- 
lains at  consular  stations  abroad,  by 
withdrawing  the  allowance  in  aid  of 
their  supyiort  granted  under  the  Act 
6  Geo.  IV'.  c.  87.  This  determina- 
tion met  with  nnich  orposition.  In 
1874  a  connnittee  of  he  House  of 
Commons  was  appointee*  to  consider 
the  case,  and  on  July  0,  1875,  the 
attention  of  the  house  was  called  to 


the  report  of  this  committee,  and 
it  was  moved  to  resolve  that  the 
adherence  of  the  government  to  this 
policy,  in  respect  to  consular  chap- 
lains, was  uncalled-for  and  inexpe- 
dient, and  ought  to  be  reconsi- 
dered. But,  after  debate,  the  mo- 
tion was  negatived.  Jbid.  vol.  ccxxv. 
p.  1250. 

•^  See  Todd,  Pari.  Gov.  '-ol.  i. 
p.  313.  Several  acts  incorporating 
the  synods  of  the  various  dioceses  of 
the  Church  of  England  in  Canada, 
have  been  passed  by  the  legislatures 
of  the  Canadian  provinces  since 
confederation.  Similar  acts  have 
also  been  passed  on  behalf  of  the 
Presbyterians,  Wesleyan  Method- 
ists, and  other  denominations. 


Ikmmin 


rr.*i|i«iiil.;Wu,7Iig?S 


ONIES. 

tions,  has 

y  of  the 
ilonies  — 
om   local 
heir  own 
il  organi- 
r  colonial 
luthority 
hey  may 
in  mem- 
!  in  their 
irch  syn- 
)mary  to 
(Oration." 
''  interfe- 
l  bishops 
L  the  so- 
colonial 
church, 
title  or 
it  sanc- 


littee,  and 
that  the 
K'lit  totliis 
uUir  chiip- 
id  inoxpe- 
i  recoiisi- 
,  the  mo- 
vo\.  ccxxv. 

)V.    ■••ol.  i. 

riioratiujT 

iocesesof 

Canada, 

S:islatures 

'OS  since 
[lets  have 
ilf  of  tlie 

M.'thod- 

iuns. 


SUPREMACY  OVER  ECCLESIASTICAL  MATTERS. 


309 


tions ;  but  leaves  all  such  questions  to  be  disposed  of 
by  those  who  may  voluntarily  submit  themselves  to  his 
jurisdiction.'^ 

On  Jan.  10,  1872,  the  bishop  of  Sydney  (Australia)  Episcopal 
addressed  a  letter  to  the  secretary  of  state  for  the  colo-  Australia. 
ni(  ■,  expressing  the  earnest  desire  of  the  Episcopal 
Church  in  Australia  to  maintain,  as  far  as  possible,  its 
connection  with  the  mother  church  in  England.  To 
this  end,  he  proposed  that  while  colonial  synods  should 
continue  to  nominate  clergy  to  fill  vacant  sees,  her 
Majesty  should  be  advised  to  grant  license  to  the  arch- 
bishop of  Canterbury  to  consecrate,  and  therein  to 
name  the  diocese  to  which  the  bishop  should  be  as- 
signed. Of  late  years,  the  royal  license  had  merely 
specified  that "  the  party  is  to  be  consecrated  to  be  a 
bishop  in  such  or  such  a  colony,  or  sometimes,  in  her 
Majesty's  colonial  possessions."  This  had  given  rise  to  a 
difficulty  respecting  the  succession,  by  an  incoming 
bishop,  to  church  property  held  by  his  predecessor. 

This  letter,  moreover,  pointed  to  the  need  of  imperial 
legislation  to  define  and  regulate  the  status  of  priests 
and  deacons  ordained  in  the  colonies. 

The  under-secretary  of  state,  in  reply,  informed  the  i"  other 
bishop  that  Lord  Kimberley  was  not  prepared  to  re- 
commend a  departure  from  the  course  hitherto  observed 
and  approved  by  the  law  officers  of  the  Crown,  under 
which,  in  conformity  with  the  decision  of  the  privy 
council,  above  mentioned,  her  Majesty  would  be  advised 
to  refrain  in  future  from  appointing  a  bishop,  in  any 
colony  possessing  legislative  institutions,  without  the 
sanction  of  the  legislature.  She  will,  however,  be  ad- 
vised, at  the  request  of  the  archbishop  of  Canterbury, 
to  issue  mandates  to  authorize  episcopal  consecrationb, 
by  bishops  in  England,  without  assigning  any  particular 


.■fJ 


r'    p. 


«•  Commoua  Pa])ers,  1873,  vol.  xlviii.  p.  007. 


I 


Colonial 

episcopal 

clergy. 


Imperial 
church 


310      PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

diocese  to  the  new  bishops.  Bishops  may  be  consecrated 
in  the  colonies  without  a  royal  mandate ;  and  the  colo- 
nial episcopate  must  secure  their  position,  in  respect  to 
endowments  and  otherwise,  by  voluntary  agreement,  or 
local  legislation,  as  may  be  most  convenient  and  practi- 
cable. 

As  concerning  the  status  of  colonial  clergy,  the  go- 
vernment intimated  that  they  would  not  object  to  the 
colonial  clergy  being  placed  on  a  similar  footing  to  the 
clergy  of  the  Scottish  Episcopul  Church,  under  the  Act 
27  and  28  Vict.  c.  94 ;  but  they  were  not  then  pre- 
pared to  propose  legislation  on  the  subject.® 

In  1873,  Lord  Blachford  (formerly  Sir  F.  Rogers,  and 
legislation  under-sccrctary  of  state  for  the  colonies)  introduced  a 
lollies^  ^'^  ^^^^  ^^^^  ^^^^  House  of  Lords,  to  continue  the  ecclesiasti- 
cal corporations  previously  established  in  any  British 
colony,  "  by  enabling  the  future  elected  bishops  to  suc- 
ceed to  the  endowments"  of  the  bishops  appointed 
under  letters-patent ;  and  also  to  remove  the  legal  dis- 
ability of  clergy  ordained  in  the  colonies  from  officiating 
or  holding  pieferment  in  other  parts  of  the  empire.* 
This  bill  passed  the  Lords,  but  was  dropped  in  the  Com- 
mons. In  1874,  it  was  again  introduced,  and  became 
law;  but  with  the  omission  of  the  clauses  affecting 
the  devolution  of  church  property,  which  it  was  agreed 
could  be  more  suitably  dealt  with  by  the  local  legisla- 
tures.*'' 

It  is  unlikely  that  the  Imperial  Parliament  will  enter- 
tain any  further  proposals  for  legislation  affecting  ec- 
clesiastical questions  in  the  colonies. 


"  New    Zealand    ParL     Papers,  '  Hans.  Deb.  vol.  ccxvi.  p.  484. 

1872,  A.  no.  1,  a,  p.  31.     For  par-         «  Ihiil.  vol.  cexviii.  p.  1804.    Act 
tioulars  of  previous  action   to   the    37  and  38  Vict.  c.  77.     Corresp.  on 


same  effect,  which  proved  unsuc- 
cessful, see  Todd,  Pari.  (lovt.  vol.  i. 
p,  311;  Hans.  Deb.  vol.  clxxxvii. 
j)p.  1250,  7(i-';  Adderlrv,  Colonial 
Policy,  pp.  31)5-404. 


Fiduciary  Projicrty  of  Colonial  Hi- 
shops,  Coninions  Papers,  1874, 
vol.  xliv.  p.  4(i3. 


■». 


flES. 

secrated 
he  colo- 
spect  to 
Qcnt,  or 
I  practi- 

the  go- 
t  to  the 
^  to  the 
the  Act 
en  pre- 

3rs,  and 

uced  a 

lesiasti- 

British 

to  suc- 

pointed 

gal  dis- 

ciatinsjc 

mpire.' 

e  Com- 

3ecame 

lecting 

agreed 

iegisla- 

enter- 
ng  ec- 


p.  484. 

i04.    Act 

rt'sp.  on 

iiiiil  Bi- 

1874, 


SUPREI.IACY  OVER  ECCLESIASTICAL  MATTERS. 


311 


Meanwhile,  —  as  is  declared  in  the  address  of  the 
Bishop  of  Wellington,  at  the  opening  of  his  diocesan 
synod,  in  1873,  —  the  church  of  England  in  New  Zea- 
land —  or  as  it  is  now  designated,  the  Church  of  the  Ec- 
clesiastical Province  of  New  Zealand  —  "  is  a  branch  of 
the  Catholic  Church,  independent  of  all  control  from 
any  other  branch  of  the  church  whatever.  No  other 
church  has  any  right  to  legislate  for  it.  No  appeal 
from  its  decisions  can  be  carried  to  the  courts  of  any 
other  church.  It  is  in  the  same  relation  to  the  church 
of  England  as  the  church  of  Ireland  or  the  church  of 
America."  It  is,  in  fact,  entirely  autonomous  and  free, 
subject  neither  to  the  authority  of  church  or  state  in 
the  mother  country :  or  even  to  the  decisions  of  the 
judicial  committee  of  the  privy  council ;  save  only  to 
the  extent,  presently  to  be  considered,  to  which  even 
nonconformist  congregations  in  all  parts  of  the  empire 
are  amenable  to  that  tribunal.  This  definition  of  the 
actual  status  of  the  Anglican  Church  in  the  colonies 
is  correct  and  explicit.  The  free  constitution  framed 
for  its  own  governance  by  tho  Episcopal  Church  in  New 
Zealand,  in  communion  witli  the  mother  church  in  Eng- 
land, has  been  since  copied  by  the  Episcopal  Church  in 
Australia,  and  will  doubtless  form  a  model  for  all  the 
churches  of  the  reformed  Anglican  confession  through- 
out the  empire.*' 

Inasmuch  as  it  is  the  undoubted  prerogative  of  the 
Crown  to  entertain  appeals  in  all  colonial  causes,  any 
ecclesiastical  matters  in  dispute  in  any  colony,  which, 
prior  to  the  Act  25  Henry  VIII.  c.  19,  would  have  been 
referred  to  the  pope,  —  and  any  doctrinal  matter  upon 
which  judgment  had  been  pronounced  by  a  colonial 


Episcopal 
Cliuirli  ill 
New  Zea- 
land. 


•»  See    the    London     Guardian,  clesiastical     Organization;"    Phil- 

Aug.   11,  1875,  J).   10'J5.     Tucker's  linioro.  Ecclesiastical  Law,  vol.  ii. 

Life  of  Bishop  Selwyn,  of  New  Z(\a-  part  10,  c.  3;  "  The  Church  iu  the 

land  and  Lichfield,  vol.  ii.c.iJ.  "  Ec-  Colonies." 


312       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


Ecclesias- 
tical ques- 
tions be- 
fore tiie 
privy 
council. 


Jurisdic- 
tion of 
courts  in 
ecclesias- 
tical cases. 


law  court,  —  is  capable  of  being  adjudicated  upon  by 
the  judicial  committee  of  the  privy  council,  in  the  shape 
of  an  appeal  from  the  decision  of  the  inferior  court. 
But  such  an  appeal  "  must  come  as  a  civil  question, 
raised  on  a  point  of  fact,  brought  from  the  civil  courts 
in  the  colonies  "  to  the  supreme  legal  tribunal  in  the 
mother  country.' 

No  ecclesiastical  body  in  the  empire  may  deny  the 
authority  of  the  civil  courts  to  inquire  whether,  in  a 
particular  case,  the  acts  of  that  body  have  been  in  con- 
formity and  agreement  with  its  own  laws,  or  whether 
such  acts  have  infringed  upon  some  civil  right  or  in- 
terest, recognized  by  those  laws  or  by  the  laws  of  the 
land,  and  a  right  of  appeal  to  the  privy  council,  from 
the  decisions  of  the  local  court,  upon  any  such  question, 
must  equally  exist.^ 

In  respect  to  non-established  churches,  the  interfe- 
rence of  the  civil  power  is  justifiable  in  two  distinct 
classes  of  cases.  Firstly,  with  a  view  to  the  settlement 
of  questions  affecting  the  exercise  of  civil  rights  in  the 
religious  body  itself.  Secondly,  in  order  to  prevent 
any  encroachment,  by  one  religious  society,  upon  the 
rights  of  other  portions  of  the  Christian  community .'^ 

So  far  as  temporal  and  civil  rights  are  concerned, 
the  courts  of  law  have  jurisdiction  over  non-established 
churches ;  and  the  control  of  the  civil  power,  as  exer- 
cised through  the  administration  of  the  judicial  office, 
may  be  properly  invoked  to  decide  questions  arising 


•  Hans.  Deb.  vol.  clxxxvi.  pp. 
874-382.  The  case  of  Louff  r.  The 
Bishop  of  Cape  Town  was  an  appeal 
to  the  privy  council  from  the  supreme 
colonial  court,  Moore,  P.  C.  Cases, 
N.  S.  A'ol.  i.  p.  411.  See  also  the 
Guibord  Case,  Brown  v.  Cure,  &c., 
de  Montreal,  P.  C.  Appeals,  vol. 
vi.  pp.  157,  207. 

i  See  ante,  pp.  220  224. 

^  See   Imperial    Act   84   and  35 


Vict.  c.  40,  to  regulate  the  proceed- 
incfs  and  powers  of  the  Primitive 
Wesleyan  Methodist  Society  of  Ire- 
land. And  see  Forbes  c.  Eden,  1 
House  of  Ijords  Cases  (Scotch  Ap- 
peals), 0G8;  J.  Johnston  r.  The 
Minister  and  Trustees  of  St.  An- 
drew's Church,  Montreal,  1  Su- 
fremo  Court  of  Canada  Rep.  235; 
)eoks  V.  Davidson,  Grant,  Chancery 
Hep.  (Ontario),  vol.  xxvi.  p.  488. 


01 

vl 

q 

c3 
d 
bl 
11 

C( 


SUPREMACY  OVER  ECCLESIASTICAL  MATTERS. 


313 


out  of  the  operation  of  rules  agreed  upon  for  the  go- 
vernment of  any  religious  society.  The  fact  that  some 
question  of  spiritual  rights  may  run  parallel  with  the 
civil  question  cannot  exonerate  the  courts  from  the 
duty  of  adjudicating  upon  matters  which  may  indirectly, 
but  in  supposable  cases  must  substantially,  involve  the 
interpretation  of  the  ecclesiastical  laws  of  the  particular 
community.' 

The  source  of  the  authority  of  the  Crown  in  eccle-  Royal  su- 
siastical  matters,  and  of  its  jurisdiction  in  the  last  re-  p'"'^'"'^^^* 
sort  all  over  ecclesiastical  causes  that  may  come  before 
any  civil  court  within  the  realm,  is  to  be  found  in  the 
doctrine  of  the  royal  supremacy.  This  doctrine  is  a 
foundation  principle  of  the  British  Constitution.  It 
was  authoritatively  asserted  by  Parliament  at  the  era 
of  the  Reformation,  and  it  is  interwoven  with  the  very 
essence  of  the  monarchy  itself;  for,  by  the  act  of  set- 
tlement, the  succession  to  the  Crown  of  England  is 
expressly  limited  to  Protestant  members  of  the  Church 
of  England ;  while,  by  previous  enactment,  ecclesiasti- 
cal supremacy  had  been  conferred  upon  the  Crown,  as  a 
perpetual  protest  against  the  assumption,  by  any  foreign 
piiest  or  potentate,  of  a  right  to  exercise  coercive 
power  or  pre-eminent  j  urisdiction  over  British  subjects.'" 


"  ,i 


i  1 


^  See  Mr.  Gladstone  on  the  Func- 
tions of  Laymen  in  the  Church,  re- 
printed in  his  '*  Gleanings  of  Past 
Years,"  vol.  vi.  p.  1;  and  cases 
cited  in  Chitty's  Equity  Index,  ed. 
1853,  nrho  "  Dissenters."  Anneri- 
can  law,  as  administered  in  the  sev- 
eral states  of  the  Union,  and  by  the 
federal  courts,  is  equally  decided  in 
claiming  complete  and  exclusive 
jurisdiction  over  all  relijjious  socie- 
ties, upon  questions  of  life,  liberty, 
and  property,  —  whether  real  or  per- 
sonal estate,  or  money,  in  the  hands 
of  ecclesiastical  associations.  — 
whilst  it  leaves  all  spiritual  ques- 
tions—  whetlier  of  worship,  doc- 
trine, discipline,  or  membership  — 
to  the  exclusive  decision  of  the  reli- 


gious body  itself;  save  only  where 
it  may  be  necessary  to  deal  with 
such  questions,  in  order  to  decide 
upon  a  matter  of  civil  rights.  See 
Greene's  American  edition  of  Brice 
on  Ultra  Vires.  And  an  able  arti- 
cle in  the  British  Quarterly  Review, 
October,  1H7G,  Art.  V. 

•"  12  and  13  Will.  ITT.  c.  2.  Bai- 
ley, Succession  to  the  English 
Crown,  p.  227.  This  princi]iie  is 
formally  enunciated  in  the  oaths  re- 
quired to  be  taken  in  the  various  co- 
lonies of  (Jreat  Britain  by  the  gover- 
nor or  other  chief  magistrate,  and 
the  members  of  the  legislature.  See 
Conmions  Papers,  1866,  vol.  1.  p. 
525. 


'ill 


r    1 

; 

1  ^1 

i' 

1   - 

1 

1  ^1 

I'f 

ILi 

k 

Papal 
claiius  ab- 
jured in 
Britisli 
empire. 


Ecclesias- 
tical titles 
act. 


314       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

The  Statute  of  1  Eliz.  c.  1,  known  as  the  Act  of 
Supremacy,  declares  that  no  foreign  prince,  person, 
prelate,  or  potentate,  spiritual  or  temporal,  shall  hence- 
forth use,  enjoy,  or  exercise  any  power,  jurisdiction,  or 
authority  within  the  realm,  or  within  any  part  of  the 
queen's  dominions ;  and  that  all  such  power  or  autho- 
rity heretofore  exercised  shall  be  for  ever  united  and 
annexed  to  the  Imperial  Crown  of  this  realm. 

This  declaration  remains  in  force  to  the  present 
day,"  and  it  is  the  statutory  warrant  for  the  supremacy 
of  the  Crown,  in  all  matters  and  causes,  civil  or  eccle- 
siastical, throughout  the  British  Empire,  as  well  as  for 
the  renunciation  of  the  papal  claims  therein. 

Within  our  own  day,  this  principle  has  been  re- 
asserted by  the  Imperial  Parliament  in  an  emphatic 
and  unmistakable  manner. 

In  September,  1850,  the  pope  of  Rome  issue^^  a  brief, 
dividing  the  United  Kingdom  into  dioceses,  ovci.  each  of 
which  was  placed  an  archbishop,  or  bishop,  with  territorial 
jurisdiction,  and  an  ecclesiastical  title,  derived  from  some 
city  or  town  in  Great  Britain.  This  proceeding  excited  great 
indignation  in  the  country ;  and  an  act  of  Parlian.ent  was 
passed,  by  large  majorities,  declning  all  such  briefs,  and  all 
jurisdiction  pretended  to  be  conferred  thereby,  unlawful  and 
void,  and  prohibiting  the  assumption  of  ecclesiastical  titles  in 
respect  of  any  places  within  the  United  Kingdom."  The 
ecclesiastical  titles  act  was  in  substance  a  declaration  of 
the  common  law,  which  was  affirmed  before  the  Reformation, 
and  ratified  by  Parliament  some  five  hundred  years  ago.  It 
was  intended,  however,  as  a  measure  of  defence,  not  of 
aggression,  and  no  attempt  was  ever  made  to  enforce  its 
prohibitions  or  to  levy  the  penalties  which  it  imposed.  But 
it  would  be  erroneous  to  infer  from  this,  that  the  act  was 


"  See    the    Eevised    Statutes,    1  1877,  reprinted  in  his  •'  Gleanings 

Kliz.  c.  l,secs.  16, 17.     Keniiuks  on  of  Past  Years,"  vol.  v.  p.  173. 

the  Hoyal  Supremacy;  as  it  is  de-  °  Act  14  and  15  Vict.  c.  GO.   And 

fined  hy  Reason,  History,  and  tlie  see  Martin,  Life  of  tlie  Prince  Cou- 

C'onstitution:   by  lit.  Hon.  W,  E.  sort,  vol.  ii.  p.  335. 
Gladstone,  M.  P.     Third  edition, 


=gs=: 


LONIES. 

he  Act  of 
e,  person, 
lall  lience- 
diction,  or 
art  of  the 
or  autho- 
iiited  and 

e  present 
lupremacy 
.  or  eccle- 
ell  as  for 

been  re- 
emphatic 

y^  a  brief, 

Gi.    each  of 

territorial 

J"roni   some 

cited  great 

lU-eiit  was 

fs,  and  all 

awful  and 

al  titles  in 

Dm.o      The 

aration   of 

formation, 

3  ago.     It 

e,  not   of 

3nforce  its 

)sed.     But 

e  act  was 

"  Gleanings 
p.  173. 
c.  GO.   And 
Prince  Cou- 


SUPIIEMACY  OVER  ECCLESIASTICAL  MATTERS. 


315 


either  ineffectual  or  unnecessary.  On  the  contrary,  it  was 
intended  to  be  '•'•  a  plain  and  emphatic  assertion  by  the  legis- 
lature of  the  constitutional  authority  and  supremacy  of  the 
sovereign,  and  there  has  not  since  1851  been  any  general  or 
ostentatious  infraction  thereof  by  those  against  whom  it  was 
directed."  p 

Re})eated  attempts  were  made  in  1867,  and  following  years 
to  1870,  to  induce  Parliament  to  repeal  this  statute,  and  in 
1867  a  committee  of  the  House  of  Commons  reported  in 
favour  of  its  abrogation ;  but  these  attempts  were  unsuc- 
cessful.i 

At  length,  in  1871,  Parliament  consented  to  repeal  the  act 
of  1851,  which  in  its  restrictions  had  been  practically  a  dead 
letter,  and  in  so  far  to  legalize,  on  behalf  of  Roman  Catholics 
in  the  United  Kingdom,  those  local  and  territorial  arrange- 
ments for  assigning  to  the  clergy  and  ecclesiastical  hierarchy 
of  the  Roman  Church  therein  special  districts  for  spiritual 
service.  It  was  admitted  to  be  inexpedient  "to  impose 
penalties  upon  those  ministers  of  religion  who  may,  as  among 
the  members  of  the  several  religious  bodies  to  which  they 
respectively  belong,  be  designated  by  distinctions  regarded 
as  titles  of  office,  although  such  designation  may  be  connected 
with  the  name  of  some  town  or  place  within  the  realm."  '^ 

But  it  was  at  tlia  same  time  provided  that  the  repeal  of 
the  aforesaid  act  of  1851  "shall  not,  nor  shall  anything  in 
this  act  contained,  be  deemed  in  any  way  to  authorize  or 
sanction  the  conferring  or  attempting  to  confer  any  rank, 
title,  or  precedence,  authority  or  jurisdiction,  on  or  over  any 
subject  of  tliis  realm,  b}"^  any  person  or  persons  in  or  out  of 
this  realm,  otlier  than  the  sovereign  thereof."  ** 


P  Report,  Committee  of  House  of 
Lords,  June  IG,  18G8;  Lord's  Pa- 
pers, 1867-68,  vol.  XXX.  pp.  573, 
G78. 

1  Hans.  Deb.  vol.  clxxxvi.  .pp. 
303,  7UG;  vol.  clxxxvii.  p.  5G4;  vol. 
cxc.  p.  902;  vol.  cxci.  p.  23!);  vol. 
cxcii.  p.  198'2;  vol.  cxciv.  p.  186; 
vol.  cxcvi.  p.  L'Glj  vol.  cxcvii.  p. 
IIGP;  vol.  cciii.  p.  1083. 

■•  Act  34:  and  35  Alot.  c.  53. 

'  Ibid.  In  accordance  with  the 
principle  above  set  forth,  the  Ro- 
nuiu  Catholic  bishops  in  Great  Bri- 


tain and  Ireland  (prior  to  the  pro- 
nudgation  of  the  Syllabus  by  Pope 
Pius  IX.)  declared  that  they  recojr- 
nized  their  paramount  obligations  to 
the  Rritish  Crown,  in  all  civil  mat- 
ters. (See  I  ^r.  Gladst(jne  on  the 
Vatican  Decrees,  in  tlioir  bearing  on 
civil  allegiance,  London,  1874.)  But 
in  the  Syllabus  and  Encyclical  Let- 
ter of  Pius  IX.  issued  on  Dec.  8, 
1804,  as  endorsed  and  supjilemonted 
by  the  decrees  of  the  Vatican  Coun- 
cil, in  1870,  the  supremacy  of  the 
church  over  the  state,   in  civil  as 


iW 


li 


!? 


if: 


The  Je- 
suits. 


Roman 
Catholic 
religion  in 
Canada. 


316       TARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

The  Roman  Catholic  relief  act,  of  1829,  contained  a  clause 
similar  in  principle  to  the  act  of  1851,  forbidding  the  assump- 
tion of  the  name,  style,  or  title  of  any  archbishop,  bishop,  or 
dean,  in  England  or  Ireland,  by  any  person  other  than  the 
lawfully  appointed  incumbent  of  the  same  ;  and  likewise 
another  clause,  forbidding  any  member  of  the  order  of  Jesuits 
to  "come  into  this  realm."  *  These  provisions  of  the  statute 
soon  ceased  to  be  operative,  and  are  not  now  enforced.  But, 
so  far  as  the  clause  relating  to  the  Jesuits  is  concerned,  the 
House  of  Commons  was  assured,  in  1875,  that  it  is  not  looked 
upon  by  her  Majesty's  government  as  being  obsolete,  but,  on 
the  contrary,  "  as  reserved  powers  of  law  of  which  they  will 
be  prepared  to  avail  themselves  if  necessary."  " 

Upon  the  cession  of  Canada  to  the  British  Crown, 
while  entire  freedom  of  religion  was  guaranteed  to  the 
French  Canadian  population,  the  principle  of  the  royal 
supremacy  was  distinctly  maintained.  By  the  fourth 
article  of  the  treaty  of  1763,  his  Britannic  Majesty 
agreed  to  grant  "  the  liberty  of  the  Catholic  religion 
to  the  inhabitants  of  Canada,"  and  promised  to  "  give 
the  most  effectual  orders  that  his  new  Roman  Catholic 
subjects  may  profess  the  worship  of  their  religion, 
according  to  the  rites  of  the  Romish  Church,  as  far," 
it  was  significantly  added,  "  as  the  laws  of  Great  Bri- 
tain permit."  The  Quebec  act,  passed  in  1774,  ratified 
and  secured  to  the  inhabitants  of  that  province  the 
free  exercise  of  their  religion,  pursuant  to  the  treaty 
of  1763,  with  a  proviso  that  the  same  should  be  "sub- 
ject to  the  king's  supremacy,  declared  and  established 
by  an  act,  made  in  the  first  year  of  the  reign  of  Queen 
Elizabeth,  over  all  the  dominions  and  countries  which 


well  as  in  spiritual  matters,  is  as-  an  answer  to  Ileproofs  and  Replies, 

serted,  and  the  supremacy  of  the  published  in  February,  1875. 
pope,  and  his  claim  to  the  obedi-  *■  Act  10  Geo.  IV.  c.  7,  sees.  24, 

enee  of    his  spiritual  subjects,    is  29. 

affirmed,  as  an  article  of  faith.    See         "  Mr.  Disraeli,  Hans.  Deb.  vol. 

Gladstone's    Vatican   Decrees,   ed.  ccxxiv.  p.  16:?2.     And  see  ihid.  vol. 

1875,  p.  43.     And  his  Vaticanism,  ccxxv.  p.  1058. 


SUPREMACY    OVER  ECCLESIASTICAL  MATTERS. 


317 


then  did,  or  thereafter  should  belong  to  the  Imperial 
Crown  of  this  realm." "" 

It  is  noteworthy,  in  this  connection,  to  observe  that 
in  the  royal  instructions  to  the  Duke  of  Richmond,  on 
his  appointment  in  1818  as  governor-in-chief  in  and 
over  the  provinces  of  Upper  and  Lower  Canada,  it  is 
stated,  with  reference  to  the  inhabitants  of  Lower  Ca- 
nada, "  that  it  is  a  toleration  of  the  free  exercise  of  the 
religion  of  the  Church  of  Rome  only  to  which  they  are 
entitled,  but  not  to  the  powers  and  privileges  of  it  as 
an  established  church,  that  being  a  preference  which 
belongs  only  to  the  Protestant  Church  of  England." 
And  "  it  is  our  will  and  pleasure  that  all  appeals  to  a 
correspondence  with  any  foreign  ecclesiastical  juris- 
diction, of  what  nature  or  kind  soever,  be  absolutely 
forbidden  under  very  severe  penalties."  ^^ 

And  although,  by  subsequent  legislation,  as  we  have 
seen,  every  vestige  of  prefr^rence,  on  the  part  of  the 
state,  for  one  religious  denomination  over  another  has 
been  abolished  in  Canada,  so  that  no  special  powers  or 
privileges  can  be  claimed  by  any  religious  society, 
under  pretence  of  being  "  an  established  church,"  yet 
the  absolute  supremacy  of  the  Crown,  in  all  causes  and 
matters  ecclesiastical,  as  opposed  to  claims  and  preten- 
sions of  the  pope  of  Rome  to  jurisdiction  over  British 
subjects,  is  the  law  in  Canada,  as  unreservedly  as  in 
all  other  parts  of  the  queen's  dominions. 

In  conformity  with  this  constitutional  dontrine,  the  Cana-  Supreme 
dian  Supreme  Court  decided,  in  1877,  that  a  certain  election  p^pa\p"e. 
of  a  member  to  serve  in  the  dominion  parliament  was  void,  tensions, 
because  Romish  priests  had  been  guilty  of  undue  influence 
thereat ;  having,  under  colour  of  the  performance  of  spiritual 
functions,  interfered  with  the  free  exercise  of  the  elective 
franchise,  in  violation  of  the  civil  rights  of  the  electors.     This 


•in 


'  14  Geo.  III.  c.  83,  sec.  5. 

^  Commons  Tapers,  1837-38,  vol.  xxxix.  no.  94,  pp.  71,  72. 


I 


318       PARLLVMENTARY  GOVERNMENT  IN  THE  COLONIES. 

timely  judgment  struck  at  the  root  of  the  ultramontane 
claims  of  the  supremacy  of  the  church  over  the  state,  —  claims 
which  had  been  vehemently  urged  by  ecclesiastical  dignitaries 
of  the  Romish  Church  in  Canada,  —  and  vindicated  the  true 
doctrine  of  the  supremacy  of  the  law.  It  was  a  unanimous 
decision  of  the  court,  which,  to  their  honour  be  it  said,  in- 
eluded  learned  judges  of  French  origin,  and  of  the  Roman 
Catholic  faith." 


*  Brassard  et  al.  v.  Langevin, 
C«>.nada  Supreme  Court  Rep.  vol.  i. 
p.  145.  See  the  North  American 
Review,  vol.  cxxv.  p.  557,  on  the 


ultramontane  movement  in  Canada. 
And  Rome  in  Canada,  by  Charles 
Lindsey.    Toronto,  1877. 


ha 


>"' 


OLONIES. 

iltramontane 
ate,  —  claims 
al  dignitaries 
,ted  tlie  true 
a  unanimous 
e  it  said,  in- 
f  the  Roman 


nent  in  Canada, 
ida,  by  Charles 

1877. 


CHAPTER  IV. 

PART  II. 

DOMINION  EXERCISABLE  OVER  SUBORDINATE  PROVINCES  OF  THE 
EMPIRE   BY  A  CENTRAL  COLONIAL  GOVERNMENT, 

Within  the  past  quarter  of  a  century,  a  novel  principle 
has  been  introduced  into  the  colonial  polity  of  Great 
Britain,  whereby  the  imperial  government  has  relin- 
quished the  direct  supervision  and  authority  over  pro- 
vinces which  are  included  within  the  limits  of  larger 
colonies,  and  the  responsibility  of  exercising  a  general 
control  over  such  subordinate  provinces  has  been  vested 
in  a  central  colonial  government. 

This  transference  of  imperial  control  is  a  natural 
consequence  of  the  n  Dst  ample  recognition  of  the 
doctrine  of  local  self-government.  But,  practically, 
such  concession  of  imperial  rights  to  the  highest  local 
authority  in  the  particular  colony  has  varied  according 
to  the  circumstances  in  which  each  colony  is  placed.  In 
New  Zealand,  which  is  the  earliest  example  of  such  a 
form  of  administration,  the  provinces  were  directly  and 
unreservedly  subordinated  to  the  central  authority.  In 
the  later  instances  of  the  Canadian  and  South  African 
colonies,  local  rights  were  expressly  reserved,  and  the 
principle  of  federation  introduced,  with  the  assignment 
of  limited  powers  only  to  the  federal  government.  In- 
variably, however,  certain  reservations  and  restrictions 
have  been  imposed  upon  the  central  authority  by  the 
wisdom  of  the  Imperial  Parliament. 

Since  the  year  1852,  three  jurisdictions  of  this  descrip- 


■<;  ii 


I 


320       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIKS. 


FedornI 
ami  pro- 
vincial 
jiirisilif- 
tiuns. 


tion  have  been  established  by  imperial  legislation,  —  in 
the  respective  colonies  of  New  7'jalanJ,  of  Canada,  and 
of  South  Africa. 

But,  inasmuch  as  the  only  example  of  subordinate 
provincial  governments  now  in  active  operation  in  the 
empire  is  to  be  found  in  British  North  America,  it  may 
be  better  to  depart  from  the  strict  chronological  order 
in  describing  the  working  of  these  local  institutions, 
and  to  consider  briefly  the  special  peculiarities  of  the 
Australasian  and  South  African  provincial  systems  ;  and 
then  to  examine  in  detail  the  questions  that  have 
arisen  out  of  the  formation  of  subordinate  provinces 
in  the  dominion  of  Canada. 


In  New 
ZL-alaud. 


a.  Provincial  governments  in  Neio  Zealand. 

In  1851,  whilst  Earl  Grey  held  the  seals  of  office  as 
her  Majesty's  secretary  of  state  for  the  colonies,  a 
scheme  for  the  future  government  of  New  Zealand  was 
elaborated  by  the  imperial  government.  It  was  pro- 
posed to  grant  a  representative  constitution  to  this 
rising  colony  with  a  General  Assembly,  to  be  composed 
of  two  legislative  chambers,  and  to  divide  the  colony 
into  five  (afterwards  changed  to  six)  provinces,  each  of 
which  should  be  governed  by  a  superintendent  with  an 
elected  provincial  council :  these  councils  to  be  empow- 
ered to  legislate  on  all  subjects  of  a  local  nature  not 
directly  reserved  for  the  consideration  of  the  General 
Assembly  ;  such  provincial  enactments  to  be  assented  to, 
in  the  first  instance,  by  the  superintendent,  but  to  be 
subject  to  disallowance  by  the  paramount  authority  of 
the  Crown  conveyed  through  the  governor  of  New 
Zealand,  in  like  manner  as  laws  passed  by  the  General 
Assembly. 

In  February,  1852,  before  Earl  Grey's  scheme  had 
been  submitted  to  Parliament,  a  change  of  ministry 


COLONIES. 

islation,  —  in 
'  Canada,  and 

subordinate 
ration  in  the 
erica,  it  may 
•logical  order 

institutions, 
irities  of  the 
y stems ;  and 
3  that  have 
,te  provinces 


iland. 

3  of  office  as 
J  colonies,  a 
Zealand  was 
It  was  pro- 
tion  to  this 
be  composed 
le  the  colony 
inces,  each  of 
dent  with  an 
:o  be  empow- 
1  nature  not 
'  the  General 
e  assented  to, 
it,  but  to  be 
,  authority  of 
nor  of  New 
'  the  General 

scheme  had 
of  ministry 


PHOVIXCIAL  GOVERNMENTS  IN  NEW  ZEALAND. 


321 


occurred.  Sir  John  Pakington,  who  succeeded  to  the 
office  of  colonial  secretary,  nevertheless  introduced  the 
New  Zealand  government  bill  of  his  predecessor  into 
the  House  of  Cornmous,  but  with  one  important  altera- 
tion, lie  proposed  that,  in  view  of  the  limited  powers 
of  the  provincial  councils,  the  superintendent  should 
have  authority  to  assent  to  the  laws  passed  therein, 
on  behalf  of  the  governor  of  the  colony  and  subject 
to  instructions  to  be  received  from  him.  And  the 
governor  was  further  empowered  to  disallow  any  local 
act  so  assented  to,  within  tfro  years.  This  provision 
was  made  in  order  to  enable  the  governor,  in  any 
special  case,  to  refer  for  instructions  to  her  Majesty's 
secretary  of  state.  By  this  means  the  colonial  office 
was  enabled  to  exercise  a  control  over  all  provincial 
legislation.  But,  during  the  progress  of  the  discussion 
on  this  bill  in  Parliament,  the  government  were  induced 
to  amend  it,  at  the  suggestion  of  Mr.  Gladstone,  so  as 
practically  to  abandon  the  imperial  veto  on  acts  passed 
by  the  provincial  councils.  This  vas  effected  by 
reducing  the  period  within  which  it  should  be  compe- 
tent to  the  governor  to  disallow  any  such  act  from  two 
years  to  three  months  after  his  receipt  of  the  same." 

When  this  measure  came  before  the  House  of  Lords, 
Earl  Grey  expressed  great  regret  that  the  power  of  the 
Crown  to  disallow  acts  passed  by  a  provincial  legisla- 
ture had  been,  for  the  first  time,  formally  abandoned. 
Admitting  that,  owing  to  the  limited  powers  of  the  pro- 
vincial councils,  it  might  have  been  rarely  necessary  to 
exercise  the  control  of  the  Crown  over  their  enact- 
ments, yet  he  was  of  opinion  that,  inasmuch  as  under  the 
municipal  reform  act  of  1835  the  Crown  was  invested 
with  authority  to  disallow  corporation  by-laws,  so  the 


»  See  Hans.  Deb.  vol.  cxxi.  pp.     sees.  18-31.    Adder  ley,  Colonial  Po- 
114,  9-23,  962,  978.     Ibiil.  vol.  cxxii.     licv,  p.  140. 
p.  1149.     Act  15  and  10  Vict.  c.  72, 

21 


1 

s, 


ill 


It  i 


i 


i|'i 

t:''^ 


\n% 


ii 

V 
t 

r 


1 1 

> 

i 


Ik 


Abolition 
ot"  provin- 
cial go- 
vernments 
in  New 
Zealand. 


322       PARUAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

same  power  should  have  been  retained  over  the  larger 
and  more  important  spliere  of  legislation  entrusted  to 
these  provincial  councils.^ 

The  provincial  councils,  however,  were  absolutely 
subordinate  under  their  constitution  to  the  central 
legislature,  which  was  at  liberty  to  control  or  super- 
sede any  of  their  laws ;  and,  further,  to  modify  the 
powers  of  the  provincial  councils  themselves  without 
reference  to  the  Imperial  Parliament  And  the  relation 
in  which  the  governor  stood  tov*^ards  the  provincial 
councils  was  substantially  the  same  as  that  occupied  by 
the  Crown  itself  towards  colonial  legislatures/  In  these 
important  particulars,  the  provincial  governments  in  New 
Zealand  differed  materiall}^  from  the  local  governments, 
subsequently  introduced  into  Britinli  North  America. 

But  these  provincial  governmer^s  were  very  short 
lived.  In  1875,  by  an  act  of  the  General  Assembly,'^ 
they  were  abolished ;  and  the  powers  previously  exer- 
cised by  the  superintendents  and  councils  were  trans- 
ferred back  to  the  central  executive  and  legislature, 
which  afterwards  established  local  boards  throughout 
New  Zealand  for  local  purposes. 


Soutli 
A  f  riciin 
federa- 
tion. 


b.  Provincial  governments  in  South  Africa. 

In  1877,  a  permissive  act  was  passed  by  the  Imperial 
Parliament  to  provide  for  the  union,  under  one  govern- 
ment, of  the  British  colonies  and  states  in  South  Africa.* 
This  act  appears  to  contemplate  the  establishment  of  a 
federal  union  ;  but  it  merely  defines  the  general  princi- 


*•  Ilans.  Deb.  vol.  cxxii.  p.  11(50.  colonial  legislature  to  pass  this  act, 

"  Secretary     Laboucliere's      de-  see    I^ord  C'arnarvon's   despatch  of 

spatch  to  (lovernor  Browne,  of  Dec.  Dec.    !'(►.    1877,    in    New    Zealand 

10,  18r)(i;  Commons  Papers,  1860,  Tarl.    Papers,   1878,  appx.    A.  2, 

vol.  xlvi.  p.  480.  p.  (5. 

0  New  Zealand  Act.  89  Vict.  no.  «  40  and  41  Vict.  c.  47. 

21.     As  to  the  competency  of  the 


:)NIES. 

he  larger 
rusted  to 

bsolutely 
5  central 
)r  super- 
>dify  the 
without 
;  relation 
rovincial 
Lipied  by 
In  these 
ts  in  New 
rnments, 
nerica. 
ry  short 
ssembly,** 
5ly  exer- 
re  trans- 
'islaturo, 
oughout 


mperial 
ffovern- 

Vfrica.® 
nt  of  a 

princi- 


tliis  act, 
^patch  of 
Zealand 
A     '5 


rROVINCIAL  GOVERNMENTS  IN  SOUTH  AFRICA. 


323 


pies  intended  to  regulate  the  future  constitution  of  the 
proposed  union  in  its  executive  and  legislative  capacity. 
The  details  of  the  scheme  are  to  be  provided  for  by  an 
order  in  council,  to  be  issued  so  soon  as  the  legislatures 
of  the  several  colonies  and  states  included  in  the  act  of 
union  shall  have  agreed  upon  the  same. 

In  one  important  particular,  however,  the  proposed 
confederation  will  probably  differ  from  that  which  has 
been  established  in  British  North  America,  inasmuch  as 
it  has  been  agreed  to  retain  the  ultimate  jurisdiction 
and  supremacy  of  the  queen  in  council,  not  only  over 
the  legislation  of  the  union  parliament,  but  also  over 
all  laws  which  may  be  passed  by  the  provincial  legisla- 
tures. 

In  the  original  draft  of  this  permissive  statute,  as 
framed  by  the  imperial  government  and  submitted  for 
the  consideration  of  the  local  authorities  in  South  Africa 
in  December,  1876,  it  was  provided  by  section  fifty-six 
that  ""  every  law  made  by  a  provincial  council  shall  be 
forthwith  transmitted  to  the  governor-general,  who 
shall,  according  to  his  discretion,  allow  or  disallow  the 
same."  And  the  twelfth  section  of  the  bill  enacts  that 
"  where  '  the  governor-general '  alone  is  mentioned,  the 
provision  shall  be  construed  as  referring  to  the  gover- 
nor-general acting  on  his  own  discretion  and  without 
advice  "  from  his  privy  council.^  But  in  the  bill,  as  it 
became  law,  this  section  is  materially  changed,  and 
it  is  provided  that  "  every  law  made  by  a  provincial 
council  shall  be  forthwith  transmitted  to  the  governor- 
general,  who  shall  proceed  with  regard  to  such  law  in 
the  same  manner  as  is  hercinl^efore  provided  with 
respect  to  bills  passed  by  the  union  parliament;"^  that 
is  to  say,  not  merely  to  decide  upon  the  expediency  of 
assenting  to  or  of  withholding  his  assent  from  the  same, 


'  Comnons  Papers,  1877,  C.  1732,  pp.  21,  20. 
•  40  and  U  Vict.  47,  sec.  36. 


■f'  P 


\  fii 


324      PARLIAMENTARY  GOVERNMENT  IN  THE   COLONIES. 

Powers  of  biit  also,  according  to  his  discretion  and  subject  to  his 
in  South"  instructions  from  the  Crown,  to  reserve  any  such  bills 
Africa.  fQj.  ^\jQ  signification  of  the  royal  pleasure.  Further- 
more, in  the  case  of  all  bills  assented  to,  the  governor 
is  required  to  forward  copies  thereof  to  the  secretary 
of  state,  in  order  that  they  may  be  subject  to  disallow- 
ance by  the  queen  in  council  within  a  period  of  two 
years,  in  like  manner  as  in  the  case  of  laws  passed  by 
the  union  parliament." 

We  have  no  clew,  in  the  papers  ^3ubmitted  to  the  Im- 
perial Parliament,  as  to  the  reasons  which  influenced  the 
imperial  government  in  approving  of  this  material 
alteration  in  the  first  draft  of  their  measure,  excepting 
in  the  following  observations  of  the  secretary  of  state 
for  the  colonies,  in  his  despatch  dated  Aug.  16,  1877, 
forwarding  to  the  governor  of  the  Cape  of  Good  Hope 
the  act  of  union.  Adverting  to  the  fact  that  this  act  was 
so  framed  as  to  enable  the  Crown,  upon  ascertaining 
the  wishes  of  the  communities  who  should  desire  to 
confederate  under  its  authority,  to  assign  to  the  pro- 
vincial councils  the  exact  degree  of  jurisdiction  and 
power  which  might  best  accord  with  the  well-under- 
stood wishes  and  interests  of  these  communities,  the 
colonial  secretary  proceeds  to  state  that,  "  if  it  should 
be  decided,  either  at  first  or  at  any  later  time,  to  con- 
centrate all  the  principal  powers  and  functions  of 
government  closely  under  one  chief  legislature,  the 
provincial  councils  can  become  similar  to  the  ordinary 
municipal  organizations  for  managing  local  afliiirs; 
while,  on  the  other  hand,  if,  in  order  to  satisfy  local  sen- 
timents or  requirements,  it  should  seem  desirable  to 
entrust  the  higher  responsibilities  of  government,  in  a 
large  degree,  to  the  provinces,  this  also  will  be  easily 
feasible."  * 


h  Commons  Papers,  1878,  C.  1080,  pp.  37,  30. 
'  Ibid.  p.  22. 


)NIES. 

ict  to  his 
iich  bills 
Further- 
governor 
secretary 
disallow- 
d  of  two 
assed  by 

)  the  Tm- 
nced  the 
material 
scepting 
of  state 
16,  1877, 
od  Hope 
3  act  was 
jrtainiiig 
lesire  to 
the  pre- 
dion and 
1-under- 
iies,  the 
should 
to  con- 
^lons    of 
ire,  the 
)rdinary 
aflliirs ; 
)cal  sen- 
able  to 
nt,  in  a 
easily 


DOMINION  CONTROL  IN  MATTERS  OF  LEGISLATION.     325 

Meanwhile  eschewing  the  limitation  of  imperial  con- 
trol, which,  as  will  be  presently  shown,  the  rigid  appli- 
cation of  the  principle  of  local  self-government  to 
provincial  legislation  has  effected  in  Canada,  and  which 
once  conceded  it  is  difficult  if  not  impossible  to  with- 
draw, the  imperial  parliament  has  expressly  retained  to 
the  Crown  the  right  of  supervision  over  all  legislation 
affecting  the  welfare  of  British  subjects  in  South  Africa, 
whether  such  legislation  shall  have  emanated  from  the 
union  parliament  or  from  the  provincial  councils.  The 
earnest  desire  which  is  uniformly  exhibited  by  the 
mother  country  to  conciliate  her  colonies,  and  to  make 
use  of  every  prerogative  of  the  Crown  to  foster  their 
best  interests,  is  a  sufficient  guarantee  that  this  reserved 
right  will  be  moderately  and  beneficently  exercised. 


c.  Provincial  governments  in  Canada. 

Following  the  order  observed  in  the  first  part  of  this  Canadian 
chapter,  our  observations  upon  the  powers  of  the  local  [["0,7* 
governments  established  in  Canada,  under  the  provi- 
sions of  the  British  North  America  act  of  1867,  will  be 
divided  into  two  heads.  We  will  first  consider  the  ex- 
tent of  dominion  control  over  the  several  provinces  in 
matters  of  legislation ;  and  afterwards  the  control  ex- 
ercisable by  the  dominion  government  over  the  pro- 
vinces in  administrative  matters. 

1.  Dominion  control  in  matters  of  legislation. 

The  British  North  America  act  of  1867  was  a  formal  Un.WBri. 
compact,  the  terms  of  which  had  been  previously  con-  Am  ^"'^'' 
sidered  and  agreed  upon  by  representatives,  on  behalf  ^*- 
of  the  several  provinces  about  to  be  confodorated,  and 
which  set  forth,  by  the  supreme  authority  of  the  Impe- 
rial Parliament,  the  mutual  relations  to   be    hereafter 


m 


Hi 


"  irl 


I  i 


Liucrica 


\i 


S-: 


I/istribu- 
tion  of  le- 
gislative 
powers. 


himm 

Ml 


[ill 


4.  ii 


326       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

observed  between  these  provinces  and  the  dominion  go- 
vernment. 

The  original  parties  to  the  compact  were  the  pro- 
vinces of  Upper  and  Lower  Canada  (afterwards  termed 
Ontario  and  Quebec,  respectively),  Nova  Scotia,  and 
New  Brunswick.  Subsequently,  other  provinces  were 
added  to  the  confederation,  under  the  provisions  of  the 
imperial  statute  aforesaid.^ 

For  the  purpose  of  enabling  the  central  government 
to  undertake  the  supreme  authority  of  control  and 
general  legislation  in  and  over  the  entire  dciuinion  of 
Canada,  the  provinces  surrendered  to  the  federal  parlia- 
ment the  exclusive  right  to  make  laws  for  the  peace, 
order,  and  good  goveinment  of  Canada,  in  relation  to 
all  matters  not  coming  within  the  classes  of  subjects 
assigned  (by  the  British  North  America  act)  exclusively 
to  the  legislatures  of  the  provinces.  And  for  greater 
certainty,  ard  yet  not  so  ap  to  restrict  the  generahty  of 
the  legislative  powers  so  surrendered  and  conferred 
upon  the  central  government,  the  act  proceeds  to  spe- 
cify certain  subjects  which,  if  they  concern  individuals 
(as  naturalization  or  marriage)  are  of  general  operation, 
or  which  would  concern  or  affect  the  whole  community, 
and  declares  that  "  the  exclusive  legislative  authority 
of  the  parliament  of  Canada  extends  to  all  matters 
coming  within  the  classes  of  subjects  "  therein  enume- 
rated. 

On  the  other  hand,  "  all  matters  of  a  merely  local  or 
private  nature  in  the  province,"  particularly  if  they 
relate  to  certain  specified  classes  of  subjects  of  local 
concern  enumerated  in  the  imperial  act  aforesaid,  are 
assigned  to  provincial  control,  and  "in  each  province 
the  legislature  may  exclusively  make  laws  in  relation 
to  "  the  same.'" 

i  Soo  post,  p.  ;$.S8.  92.     As  to  the  prpcise  meaning  of 

'' Imp.  Acty^i  Vict.  c.  3,secs.  91,     tlie  tenu   "exclusively"  \u  these 


)NTES. 

inion  go 

the  pro- 
5  termed 
)tia,  and 
es  were 
IS  of  the 

>rnment 
rol  and 
inion  of 
I  parlia- 
peace, 
tion  to 
subjects 
usively 
^^reater 
Eility  of 
riferred 
to  spe- 
viduals 
ration, 
mnity, 
ihoi-ity 
latters 
nume- 

)cal  or 
'  they 
local 
id,  are 
)vince 
lation 


ning  of 
X  these 


DOMINION  CONTROL  IN  MATTERS  OF  LEGISLATION.     327 

Concurrent  powers  of  legislation  are  likewise  con- 
ferred, both  upon  the  dominion  parliament  and  the  pro- 
vincial legislatures,  in  relation  to  agriculture  and  to 
immigration ;  but  no  provincial  law  on  these  subjects  may 
be  repugnant  to  any  act  of  the  dominion  parliament. 
And,  under  certain  circumstances,  the  parliament  of 
Canada  is  authorized  to  make  remedial  laws  for  the  due 
execution  of  particular  rights  in  respect  to  education,  gua- 
ranteed under  the  British  North  America  act,  to  denomi- 
national or  separate  schools  which  have  been  provided 
on  behalf  of  either  the  Protestant  or  Roman  Catholic  mi- 
nority of  the  inhabitants  in  each  and  every  province.' 

"  The  relation  of  the  dominion  and  provincial  autho- 
rities to  each  other  "  has  been  thus  defined  by  a  learned 
jdge  of  the  Court  of  Common  Pleas  in  Ontario  (who 
has  since  been  transferred  to  the  Supreme  Court  of 
the  dominion) :  "  The  imperial  or  sovereign  power  has 
created  several  governments,  one  of  whicL  is  made 
superior,  to  which  all  the  others  are  subordinate,  carved, 
as  it  were,  out  of  the  superior  one,  and  has  conferred 
upon  the  several  subordinates  certain  municipal  powers 
in  relation  to  certain  matters  specifically  enumerated, 
reserving  to  the  superior,  which  it  has  designated  the 
dominion  government  (so  long  as  the  Imperial  Act  re- 
mains unrepealed),  all  those  powers  which  are  neces- 
sary to  be  enjoyed  for  the  peace,  order,  and  good 
government  of  Canada,  in  relation  to  all  matters  not 
coming  within  the  classes  of  subjects  assigned  by  the 
act  exclusively  to  the  provincial  legislatures ;  and,  con- 
sistently with  this  subordination  of  the  provincial  to 
the  dominion  government,  the  laws  of  the  provincial 
legislatures  only  obtain  their  validity  by  the  assent  of 
the  dominion  government." '" 


Bectiona,  see  ante,  p.  190.  And  see 
Gniy'.s  Ili.story  of  the  Coiit'edora- 
tioii  of  CaiiaJa,  vol.  i.  p.  50. 


95. 


•  In.p.  Act  soviet,  c.  3,  sees.  93- 
"'  Mr.  Justice  CJwynne,  Out. Com. 


^^« 


t,?i 


i     11 


■m 


■     k'u 


''W 


328       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


I  i 


Control  The  precise  intent  of  the  Imperial  Parliament  in  re- 

laMoiMir  gard  to  the  powers  to  be  exercised  by  the  Crown,  for 
Ciumdaby  ^jjg  supcrvision  and  control  of  provincial  legislation  in 
Crown.  Canada,  is  not  very  distinctly  expressed  in  the  British 
North  America  act.  The  constitutional  doctrine  on 
this  subject  may,  however,  be  inferred  by  reference  to 
the  ninetieth  section,  which  enacts  that  the  provisions 
of  this  act  relating  to  "  the  assent  to  bills,  the  disallow- 
ance of  acts,  and  the  signification  of  pleasure  on  bills 
reserved,"  in  the  case  of  bills  passed  by  the  dominion 
parliament,  "  shall  extend  and  apply  to  the  legisla- 
tures of  the  several  provinces,  as  if  those  provisions 
were  ^ ^'ire  re-enacted  and  made  applicable  in  terms  to 
the  rbdpective  provinces  and  the  legislatures  thereof; 
with  the  substitution  of  the  '  lieutenant-governor  of  the 
province  '  for  the  '  governor-general,'  of  the  '  governor- 
general  '  for  the  *  queen  and  for  a  secretary  of  state,' 
of '  one  year '  for  *  two  years,'  and  of  *  the  province '  for 
'  Canada.' " 

The  procedure  upon  bills  passed  by  the  dominion 
parliament  is  regulawcd  by  sections  55  to  57  of  the 
aforesaid  statute.  Section  55  provides  that,  where  a 
bill  passed  by  both  houses  is  presented  to  the  governor- 
general  for  the  queen's  assent,  he  shall,  according  to 
his  discretion,  but  subject  to  the  provisions  of  this  act 
and  to  her  Majesty's  instructions,  declare  either  that 
he  assents  thereto  in  the  queen's  name,  or  that  he 
withholds  the  queen's  assent,  or  that  he  reserves  the 
bill  for  the  signification  of  the  queen's  pleasure. 

Section  56  provides  that,  where  the  governor-gene- 
ral assents  to  a  bill  in  her  Majesty's  name,  he  shall, 
as  soon  as  may  be,  send  a  copy  of  the  act  to  her  Ma- 
jesty's secretary  of  state,  and  if  the  queen  in  council, 


Pleas  Rep.  vol.  xyjx.  p.  274.     And    Pud^Klpy  and  Burbidjre,  Nnw  Bruns- 
see  Mr.   Justice   F'slicr's  ohserva-    wick  Reports,  vol.  ii.  p.  oO'i. 
1.0U8  iu  Steadnian    t".    Kobertsou, 


mtfamnamyuif'.  '"".it:^ 


3NIES. 

snt  in  re- 
row  n,  for 
lation  in 
e  British 
trine  on 
irence  to 
rovisions 
disallow- 
on  bills 
lominion 
legisla- 
rovisions 
terms  to 
thereof ; 
3r  of  the 
overnor- 
>f  state,' 
ince '  for 

ominion 
of  the 
vhere  a 
)vernor- 
(lintr  to 
this  jict 
er  that 
hat  he 
VQS  the 

r-gene- 
shall, 
er  Ma- 
ouncil, 

V  Bruas- 


I! 


DOMINION  CONTROL  IN  MATTERS  OF  LEGISLATION.       329 

within  two  years  after  the  receipt  thereof,  thinks  fit  to 
disallow  the  act,  such  disallowance  shall  be  duly  notified 
to  the  proper  authorities,  and  shall  forthwith  annul  the 
same. 

Section  57  provides  that  a  bill  reserved  for  the  signi- 
fication of  the  royal  pleasure  shall  have  no  force  unless 
and  until,  within  two  years  therefrom,  the  assent  of  the 
queen  in  council  shall  be  promulgated. 

In  applying  these  provisions  to  the  case  of  bills 
passed  by  the  provincial  legislatures,  constituted  under 
the    authority  of  the  British  North  America  act,  we  P'**''} 

•^  .  .  by  (i 

arrive  at  the  following  conclusions :  — 

(1.)  That  inasmuch  as  the  act  empowers  "  the  lieu- 
tenant-governor"  of  each  province,  "in  the  queen's 
name,  by  instrument  under  the  great  seal  of  the  pro- 
vince," to  "  summon  and  call  together"  the  provincial 
legislature,"  and  as  it  is  a  well-understood  principle 
that  all  parliaments,  whether  federal  or  provincial,  are 
opened  in  the  queen's  name,  and  by  her  governors; 
and  that  "  legislation  is  carried  on  in  her  name  even 
in  provinces,  as  in  Canada,  which  are  directly  subordi- 
nate to  a  federal  government,  instead  of  to  imperial 
authority," "  it  necessarily  follows  that  the  constitutional 
practice  which  for  the  most  part  prevails  in  the  several 
provinces  of  the  dominion,  whereby  the  lieutenant-go- 
vernor assents  to  or  withholds  his  assent  from  bills 
passed  by  the  provincial  legislature,  "  in  her  Majesty's 
name,"  is  correct;  and  that,  in  this  particular,  we  are 
not  warranted  in  substituting  the  name  of  "  the  gover- 
nor-general," for  that  of  "  the  queen."  ^ 


"  B.  X.  A.  Act,  sec.  82. 

°  Mr.  Disraeli,  Hans.  Deb.  vol. 
ccxxviii.  p.  'J80. 

P  It  should  be  observed,  how- 
ever, that  ill  the  provinces  of 
Nova  Se'^ia,  New  Brunswick, 
and    Prince    Edward   Is'i,uid,   bills 


are  not  enacted  in  the  name  of  the    as  since  confederation),  and  also  in 


Control 
over  pro- 
vuicial  le- 

tion 
)y  domi- 
nion go- 
vernmeut. 


sovereign,  but  as  by  "  the  lieu- 
tenant-governor, the  Council,  and 
Assembly."  This  was  the  practice 
in  these  colonies  prior  to  confedera- 
tion, and  it  has  since  continued  un- 
changed. But  in  the  provinces  of 
Quebec  and  Ontario  (as  well  before 


F  iri 


:  ii  I 


f 


i 


330       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

(2.)  That  nevertheless,  whenever,  "  according  to  his 
discretion,"  the  lieutenant-governor  shall  see  fit  to  "  re- 
serve "  a  bill  presented  to  him  for  the  royal  assent,  he 
should  declare  that  he  reserves  the  same  "  for  the  sig- 
nification of  the  pleasure  of  his  Excellency  the  gover- 
nor-general," inasmuch  as,  in  such  a  case,  it  is  mani- 
festly intended  by  the  British  North  America  act  that 
the  term  "governor-general  "  should  be  substituted  for 
that  of  "the  queen,"  as  indicating  the  functionary  b^^ 
whom,  under  such  circumstances,  the  assent  or  dissent 
of  the  Crown  is  to  be  declared.  This  is  the  interpre- 
tation which  is  put  upon  the  act  by  constitutional  prac- 
tice in  all  the  dominion  provinces.""  And  the  soundness 
of  this  conclusion  is  confirmed  by  the  obvious  intend- 
ment of  the  act,  in  regard  to  the  disallowance  of  pro- 
vincial acts  as  hereinafter  stated. 

(3.)  That,  whenever  the  lieutenant-governor  shall 
have  assented  in  the  queen's  name  to  a  bill  passed  by 
the  provincial  legislature,  it  becomes  his  duty  promptly 
to  forward  a  ^opy  thereof  to  the  governor-general,  in 
order  that  if  the  governor-general  in  council  should 
see  fit,  within  one  year  after  the  passing  of  the  said 
act,  to  disallow  the  same,  such  disallowance  may  be 
duly  notified  to  the  provincial  authorities  concerned 
therein.  This  also  is  in  accordance  with  constitutional 
practice  in  the  dominion  provinces.*" 

(4.)  And  finally,  with  respect  to  provincial  bills  which 


British  Columbia  and  Manitoba, 
the  queen's  name  is  used  in  the 
enacting  clause  of  the  acts  passed  by 
the  provincial  legislatures;  a  pro- 
ceeding which,  as  suggested  in  the 
text,  is  constitutionally  correct,  and 
in  accordance  with  tlie  spirit  of  the 
British  North  America  act,  and 
which  ought  therefore  to  be  uni- 
formly observed  throughout  the 
whole  dominion.  In  the  north-we-t 
territories,  which  are  more  direi  tly 
subordinated   to    the    governor-ge- 


neral of  the  dominion  in  council, 
ordinances  are  enacted  by  "  the 
lieutenant-governor,"  "  by  and  with 
the  advice  and  consent"  of  his 
"  council."  See  further,  in  regard  to 
the  diversity  of  practice  in  British 
North  America,  iVnnings  Taylor's 
Are  Legislatures  Parlianients?  pp. 
193-195. 

1 0ntario  Leg.  Assembly  Jour. 
1873,  p.  374.  Nova  Scotia  As- 
sembly Jour.  May  7,  1874. 

t  Out.  L.  A.  jour.  1869,  p.  126. 


i  •jtim,,\.ii.n  !US^'  '"C-*rj<**"rt:>'*^^^  .■■r'-'.^ui.M**' Jlj'i..'.iw*i»J" 


QNIES. 

ig  to  his 
t  to  "  re- 
ssent,  he 

the  sig- 
le  gover- 
is  mani- 
act  that 
:uted  for 
)nary  by 
r  dissent 
nterpre- 
lal  ])rac- 
»undness 
3  intend- 

of  pro- 

or  shall 
issed  by 
romptly 
leral,  in 
should 
iie  said 
may  be 
icerned 
tutional 

3  which 

council, 
by  "  the 
and  with 
of  his 
recfard  to 
n  iiritish 
Taylor's 
nts?  pp. 

ily  Jour, 
otia   A.s- 

p.  126. 


DOMINION  CONTROL  IN  MATTERS  OF  LEGISLATION.      331 

have  been  reserved  for  the  signification  of  the  governor- 
general's  pleasure,  it  is  clear  that  no  such  bill  can  have 
any  force,  or  go  into  operation,  unless  and  until,  within 
one  year  from  the  date  of  its  being  reserved  by  the 
lieutenant-governor,  the  governor-general  shall  inti- 
mate that  the  same  has  received  the  assent  of  the 
governor-general  in  council ;  and  an  entry  of  such  for- 
mal announcement  shall  be  kept  in  the  records  and 
legislative  journals  of  the  particular  province. 

We  have  still  to  consider  whether  the  governor-ge-  Powers  of 
neral,  in  deterLiining,  according  to  his  discretion,  what  g^j^eniT 
shall  be  the  iudo-ment  of  the  Crown  in  respect  to  bills  oyirpm- 

"       ~  i  viiiciiil  1g- 

passed  by  the  provincial  legislatures,  and  whether  they  gisiatiou. 
shall  be  disallov/ed  or  confirmed,  fulfils  this  function 
as  an  imperial  officer  and  subject  to  instructions  received 
from  the  secretary  of  state,  or  whether  he  is  bound  to  be 
guided  by  the  advice  of  his  ministers,  who  are  themselves 
responsible  to  the  dominion  House  of  Commons. 

This  question  is  not  without  difficulty,  as  well  in  re- 
lation to  the  general  principles  of  responsible  govern- 
ment, as  in  its  bearing  upon  those  sections  of  the  British 
North  America  act  which  confer  upon  each  province 
of  the  dominion  exclusive  powers  of  legislation,  in  re- 
gard to  certain  specified  matters  of  local  concern.  In 
fact,  it  has  given  rise  to  an  interesting  controversy 
between  the  imperial  government  and  the  advisers  of 
the  Crown  in  Canada.  A  brief  review  of  the  progress 
and  termination  of  this  controversy  may  enable  lis  to 
arrive  at  a  definite  conclusion  upon  this  vital  and  im- 
portant subject. 

Shortly  after  the  confederation  of  the  provinces  of 
British  North  America  had  been  accomplished,  and  after 
the  close  of  the  first  session  of  the  newly  established 
provincial  legislatures,  this  question  presented  itself  for 
practical  solution.  The  minister  of  justice  for  the  do- 
minion was  requested  to  advise  the  governor-general 


u 


V<\ 


st« 


^  li 


lit 


\ 


1 


If 


III 


! 


If 


How  to  be 
exercised. 


332       TARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

as  to  the  proper  course  to  pursue  with  respect  to  acts 
passed  by  the  provincial  legishituves.  In  commencing 
his  first  report  on  this  subject,  the  minister  drew  atten- 
tion to  tiie  fact  that  "  the  same  powers  of  disallowance 
as  have  alwa3'^s  belonged  to  the  imperial  government, 
with  respect  to  the  acts  passed  by  colonial  legislatures, 
have  been  conferred  by  the  union  act  on  the  govern- 
ment of  Canada."  But  that  "  under  the  present  con- 
stitution of  Canada,  the  general  government  will  be 
called  upon  to  consider  the  propriety  of  allowance  or 
disallowance  of  provincial  acts  much  more  frequently 
than  her  Majesty's  government  has  been  with  respect 
to  colonial  enactments."  ^ 

The  importance  of  establishing  a  correct  constitutional 
practice,  in  the  exercise  of  the  weighty  and  responsible 
duties  devolving  upon  him,  under  these  circumstances, 
induced  the  governor-general  of  Canada  (Sir  John 
Young)  to  apply  to  the  secretary  of  state  for  the  colo- 
nies (Earl  Granville)  for  instructions  on  this  matter. 
In  a  despatch  dated  March  11,  1869,  he  noticed  that, 
while  the  union  act  provided  that  the  lieutenant-go- 
vernor of  each  province  might  reserve  bills  for  the 
consideration  of  the  governor-general,  there  was  no 
provision  requiring  the  governor-general  to  take  her 
Majesty's  pleasure  on  such  legislation.  The  royal  in- 
structions are  also  silent  on  this  point.  Sir  John  Young, 
therefore,  presumed  that  he  "  should  exercise  the  power 
of  assent  to,  or  reservation  of,  bills  under  the  advice  of 
the  privy  council  of  this  dominion."  But  bearing  in 
mind  the  necessity  for  arriving  at  some  principle  of 
action  which  should  be  approved  by  her  Majesty's  go- 
vernment, and  steadily  adhered  to,  he  submitted  that 
it  was  desirable,  in  a  public  point  of  view,  that  he 


«  Mpmoramlum  from  thfi  .ninister  of  justice  (Sir  J.  A.  Macdonald), 
dated  June  8,  18G8.     Canada  ISess.  Papers,  1870,  no.  35,  p.  6. 


LONIES. 

Dct  to  acts 
iiimencing 
rew  atten- 
lallowance 
verninent, 
<^is]atures, 
e  govern- 
ssent  con- 
t  will  oe 
wance  or 
lequently 
h  respect 

titutional 

^sponsible 

instances, 

Sir   John 

the  colo- 

f  matter. 

ced  that, 

nant-go- 

for  the 

was  no 

take  her 

•oyal  in- 

Yoiins:, 

e  power 

clvice  of 

iring  in 

eiple  of 

'ty's  go- 

ed  that 

that  he 


cdonald), 


■ 


DOMINION  CONTROL  IN  MATTERS  OF  LEGISLATION. 


333 


should  receive  some  specific  instructions,  as  an  imperial 
officer,  as  to  his  course,  in  such  a  contingency. 

In  reply  to  this  despatch.  Earl  Granville  pointed 
out  that,  in  the  event  of  a  provincial  acL  being  passed 
which,  in  the  opinion  of  the  governor-general,  was 
"  gravely  unconstitutional,"  or  in  excess  of  tli«^  power 
of  the  local  body,  or  in  violation  of  the  royal  instruc- 
tions for  the  reservation  of  laws  which  are  objectionable 
on  grounds  of  imperial  policy,  he  was  not  at  liberty, 
even  on  the  advice  of  his  ministers,  to  sanction  or  assent 
to  any  such  law.  If  such  advice  were  given,  "  it  would 
be  his  duty  to  withhold  his  sanction  and  refer  the  ques- 
tion to  the  secretary  of  state."  On  the  other  hand,  "  if 
he  were  advised  by  his  ministry  to  disallow  any  pro- 
vincial act,  as  illegal  or  unconstitutional,  it  would,  in 
general,  be  his  duty  to  follow  that  advice,  whether  or 
not  he  concurred  in  their  opinion."  * 

This  despatch  appeared,  at  the  time,  to  be  so  satis- 
factory to  the  dominion  government,  that  by  an  order 
in  council,  dated  July  17,  1869,  the  secretary  of  state 
for  the  provu  -^s  was  directed  to  forward  the  same,  to- 
gether with  a  paragraph  from  the  royal  instructions  to 
the  governor-general,  —  in  reference  to  the  assent,  dis- 
allowance, and  reservation  of  bills  presented  for  his 
sanction,  —  to  the  lieutenant-governors  of  the  several 
provinces  of  the  dominion." 

In  conformity  with  this  interpretation  of  the  duty  of 
the  governor-general,  in  dealing  with  provincial  acts, 
it  was  stated  by  the  registrar  of  her  Majesty's  privy 
council,  in  an  official  letter  which,  on  Dec.  13,  1872,  he 
addressed  to  the  under-secretary  of  state  for  the  colo- 
nies, that,  in  the  opinion  of  the  lord  president  of  the 
privy  council,  "  the  power  of  confirming  or  disallowing 
provincial  acts  is  vested  by  the  statute  [i.  e.,  the  British 


Contro- 
virsy  1)0- 
twt'i'ii  im- 
perial nml 
(loiniiiion 
govi'in- 
nu'iits 
conccrn- 
\u^  pro- 
vincial 
Icfiisla- 
tiou. 


*  Canada  Sess.  Papers,  1870,  ao.  35,  pp.  3,  4.      "  Ibid.  pp.  25-27. 


I  'ii 


1      n  •  f      :•• 


III 


Ill 


i 


m 


■  I 


334       PARLIAMENTARY  GOVERN.\rENT  IN  THE  COLONIES. 

North  America  act  of  1867]  in  the  governor-general  of 
the  dominion  of  Canada,  acting  "  inu/cr  (he  advice  of  his 
constitutional  advisers ; "  and  that  her  Majesty  in  coun- 
cil has  no  jurisdiction  therein/ 

Subsequently,  however,  the  Earl  of  Kimberley, — 
the  then  secretary  of  state  for  the  colonies,  —  in  a 
despatch  to  the  governor-general  of  Canada,  dated 
June  30,  1873,  in  reference  to  the  proposed  disallow- 
ance of  certain  acts  of  the  New  Brunswick  provincial 
legislature,  passed  in  1873,  in  relation  to  common 
schools,  and  which  were  within  the  competence  and 
jurisdiction  of  that  body,  declared  "  that  this  is  a  mat- 
ter in  which  you  must  act  on  your  own  individual  dis- 
cretion, and  on  which  you  cannot  be  guided  hy  the  advice 
of  your  responsible  ministers."  ^ 

This  discrepancy  of  opinion  upon  a  question  of  such 
gravity  and  importance  attracted  the  attention  of  the 
Canadian  ministers.  A  committee  of  the  dominion 
privy  council  w^as  appointed  to  consider  it ;  and  they 
reported,  on  March  8,  1875,  their  opinion  that,  in  their 
view  of  the  construction  of  the  British  North  America 
act,  the  governor-general  was  req  Uicd  to  exercise  the 
power  of  assent  or  of  disallowance  to  provincial  legis- 
lation, in  the  same  manner  as  he  fulfilled  other  func- 
tions of  government ;  that  is  to  say,  iqjon  the  advice 
of  his  ministers.  This  conclusion  was  communicated 
to  the  secretary  of  state  for  the  colonies  by  the  gover- 
nor-general. 

The  Earl  of  Carnarvor,  /ho  had  succeeded  Lord 
Kimberley  as  colonial  secretary,  was  not  disposed  to 
accept  this  principle.  But,  in  a  despatch  to  the  gover- 
nor-general, dated  Nov.  5,  1875,  he  states  that,  should 
it  become  a  matter  of  practical  urgency  to  decide  the 
point,  it  could  be  finally  decided  only  upon  an  appeal 

'  Canada  Sess.  Papers,  1876,  no.  116,  p.  85. 
*  lUd.  1874,  no.  25,  p.  13. 


LONIES. 

general  of 
h'icc  of  his 
y  ill  coiin- 

berley,  — 
!S,  —  in  a 
da,  dated 

disallow- 
provincial 

common 
ence  and 
is  a  mat- 
id  ual  dis- 
the  advice 

n  of  such 
m  of  the 
dominion 
and  they 
,  in  their 
America 
rcise  the 
ial  legis- 
ler  func- 
he  advice 
unicated 
e  gover- 

ed  Lord 
30sed  to 
e  gover- 

shoiild 
cide  the 

appeal 


DOMINION  CONTROL  IN  MATTERS  OF  LEGISLATION.     335 

to  the  judicial  committee  of  the  privy  council  from  the 
judgment  of  a  colonial  court  upon  the  construction  of 
the  imperial  statute.  He  nevertheless  expressed  his 
opinion  that  it  would  be  more  in  accordance  with  the 
spirit  of  the  Constitution  that  no  rigid  rule  of  action, 
in  such  cases,  should  be  laid  down ;  but  that,  in  con- 
formity to  the  instructions  given  to  the  governors  in 
Australia,  in  the  exercise  of  the  prerogative  of  mercy, 
"  the  governor-general,  after  having  had  recourse  to  the 
advice  of  his  ministers,  —  whom  the  [dominion]  parlia- 
ment holds  answerable  for  advising  him  as  to  all  his 
public  acts  (though  not,  in  all  cases,  for  the  acts  them- 
selves),—  may  properly  be  required  to  give  his  own 
individual  decision  as  to  allowance  or  disallowance." 

"  The  constitutional  remedy  for  any  prolonged  differ-  Ministe- 
ence  of  opinion  between  the  governor-general  and  his  gJionsTbi- 
advisers  would  be  the  same  in  this  as  in  any  other  case  of  •'^>'- 
a  similar  nature.  Holding,  as  I  have  already  explained, 
the  opinion  that  the  constitution  of  Canada  does  not 
contemplate  any  interference  with  provincial  legislation 
on  a  subject  within  the  competence  of  the  local  legis- 
lature by  the  dominion  parliament,  —  or,  as  a  conse- 
quence, by  the  dominion  ministers,  —  I  assume  that 
those  ministers  would  not  feel  themselves  justified  in 
retiring  from  the  administration  of  public  affairs  on 
account  of  the  course  taken  by  the  governor-general 
on  such  a  subject ;  it  being  one  for  which  the  dominion 
parliament  cannot  hold  themselves  responsible,  al- 
though it  may  demand  to  know  what  advice  they 
gave.    ^ 

The  foregoing  despatch  was  referred  by  the  governor- 
general  in  council  to  the  minister  of  justice  (Mr.  Ed- 
ward Blake)  for  his  consideration.  On  Dec.  22,  1875, 
Mr.  Blake  submitted  an  elaborate  report  to  council, 


1; 


Canada  Sess.  Papers,  1876,  no.  116,  pp.  83,  84. 


i; 


Disallow- 

ailL'L'  of 

jjroviiR'ial 
sialutes. 


336       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

which  traversed  the  whole  ground  taken  by  the  colo- 
nial secretary.  It  denied  the  applicability  of  his  argu- 
ment from  the  analogous  position  of  a  governor  ad- 
ministering the  prerogative  of  mercy ;  inasmuch  as  the 
powers  of  provincial  legislatures  are  strictly  limited  to 
certain  subjects  of  a  domestic  character,  so  that  their 
legislation  can  only  aflect  provincial,  or  at  most  Cana- 
dian, interests.  And,  if  they  transcend  their  constitu- 
tiontd  competence,  any  acts  in  excess  of  their  powers 
are  inoperative  ab  initio. 

Mr.  Blake,  moreover,  contended  that  inasmuch  as,  by 
the  British  North  America  Act,  the  power  of  disallow- 
ing provincial  enactments  is  expressly  vested  in  "  the 
governor-general  in  council,"  in  substitution  for  the 
jurisdiction  which  was  exercised  by  the  Crown  over 
legislation  in  the  same  provinces,  when  they  were  di- 
rectly subordinate  to  "  the  queen  in  council,"  it  fol- 
lows that  the  Canadian  ministers  must  be  directly  and 
exclusively  responsible  to  the  dominion  parliament  for 
the  action  taken  by  the  governor,  in  any  and  every 
such  case ;  and  that  a  governor  who  thinks  it  neces- 
sary that  a  provincial  act  should  be  disallowed  must 
find  ministers  who  will  take  the  responsibility  of  ad- 
vising its  disallowance.  While,  on  the  other  hand, 
ministers  who  think  it  necessfiry  that  a  provincial  act 
should  be  disallowed  must  resign,  unless  th oy  can 
secure  the  consent  of  the  governor  to  its  disallowance ; 
ministers  being  in  every  case  responsible  to  parliament 
for  the  advice  given,  and  for  the  action  consequent  on 
such  advice.^ 

This  report  from  the  minister  of  justice  was  con- 
curred in  by  the  cabinet,  and  approved  by  the  governor- 
general  in  council  on  Feb.  29, 1870.  And  on  April  G, 
187G,  it  was  forwarded  by  his  Excellency  for  the  con- 
sideration of  the  imperial  government. 


y  Canada  Seas.  Paprs,  1876,  no.  110,  pp.  79,  83. 


-ONIES. 


DOMINION  CONTROL  IN  MATTERS  OF  LEGISLATION.      337 


the  colo- 
his  argii- 
ernor  ad- 
ich  as  tlie 
imited  to 
:liat  their 
lost  Cana- 

constitu- 
lir  powers 

ich  as,  by 

'  disallow- 

[  in  "the 

1  for  the 

3vvn  over 

'  were  di- 

1,"  it  fol- 

eetly  and 

iment  for 

nd   every 

it  neces- 

i^ed   must 

y  of  ad- 

er   hand, 

ncial  act 

hoy   can 

ow\'ince ; 

irliament 

iient  on 

was  con- 
overnor- 
April  6, 
the  con- 


The  secretary  of  state  for  the  colonies  in  acknow- 
ledging, on  June  1,  1876,  the  receipt  of  this  report, 
reiterated  his  convictions  that  an  authoritative  decision, 
upon  the  difficult  question  at  issue  between  the  impe- 
rial and  colonial  governments,  could  only  be  obtained 
through  the  instrumentality  of  the  judicial  committee 
of  the  privy  council,  in  giving  a  judgment  on  appeal 
upon  the  construction  of  the  British  North  America 
act. 

Meanwhile  he  invited  the  Canadian  ministers  to  con- 
sider another  aspect  of  the  question,  but  which  he  did 
not  now  wish  to  press,  in  opposition  to  their  views.  In 
sections  ten  and  thirteen  of  the  act  aforesaid,  a  dis- 
tinction is  drawn  between  '*  the  governor-general "  and 
"  the  governor-general  in  council, "  which  distinction 
is  observed  throughout  the  statute.  It  might  then  be 
urged  that  inasmuch  as  "  the  governor-general "  alone  is 
charged  in  the  ninetieth  section  with  the  duty  of 
deciding  upon  the  allowance  or  disallowance  of  pro- 
vincial acts,  it  was  the  intention  of  the  Imperial  Parlia- 
ment that  the  exclusive  responsibility  of  determining 
such  questions  should  devolve  upon  the  governor-gene- 
ral personally  ;  for,  if  his  ministers  had  power  to  control 
his  decisions  upon  provincial  acts,  it  would  be  tantamount 
to  a  repeal  of  that  portion  of  the  British  North  America 
act  which  confers  an  exclusive  right  to  legislate  upon 
certain  matters  on  the  provincial  legislatures. 

This  despatch  was  referred  by  the  Canadian  cabinet 
to  the  minister  of  justice.  Upon  his  report,  a  minute 
of  council  was  passed,  and  approved  on  Sept.  19,  1870, 
by  the  governor-general,  to  the  following  purport. 

It  was  unlikely  that  the  question  of  ministerial 
responsibility  in  connection  with  the  disallowance  of 
provincial  aci^  could  be  brought  on  appeal  before  the 
privy  coimci],  unless  the  governor-general  should  claim 
to   disallow   an   act    independently   and   without   the 

22 


Ministo- 

riiil  ri>- 

spoii^ibi- 

lity  ill  (lis- 

fillowinj; 

liroviiiuial 

uets. 


m 


iM 


i  11 


\i 


fl 


338       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

agency  of  his  ministers ;  in  which  case  it  might  be 
questioned  whether  the  act  was  efFectually  disallowed. 
The  colonial  secretary's  suggestion  that  by  the  omis- 
sion of  the  words  "  in  council,"  in  the  ninetieth  section, 
the  act  meant  to  confer  an  independent  power  upon 
the  governor-general,  is  at  variance  with  the  general 
intention  of  the  clause.  It  is  more  reasonable  to  sup- 
pose that  these  words  were  omitted  for  the  sake  of 
brevity,  and  to  avoid  unnecessary  repetition. 

As  to  the  apprehension  expressed  that  the  Canadian 
ministers  might  abuse  the  power  of  controlling  by  their 
advice  the  decisions  of  the  governor-general  upon  pro- 
vincial  acts,    no   such    consideration  would   be   valid 
against  the  true  construction  of  the  statute,  although 
it  might  be  a  reason,  if  well  founded,  for  a  change  in 
the  law.     But,  in  fact,  the  Canadian  ministers  repre- 
,  senting  the  several  provinces  of  the  confederation,  and 
}^  '  dependent  for  their  continuance  in  office   upon   their 
Ay^  ^^*  retaining  the  confidence  of  the  confederate  parliament, 
(  *■'   4,'^  '    ^re  most  unlikely  to  disregard  provincial  rights  under 
\\j,^     C  * }/     any   circumstances ;    and   any   such   abuse   of   power 

to  themselves.     We  have,  indeed,  a  greater  security 
r-     ^  '  that  this   power   will  be    wisely   exercised,  upon  the 


r      ^        •^  ».*^  would  be  quickly  followed  by  disastrous  consequences 
^\  ^^\k\:''^ '   to  theiTi 
,^^'A^'   /     >'\thatthi 

J^'^  i  Y^    '/advice  of  the  Canadian  ministers,  than  exists  in  the 
^**   i"\     '^V\/'^  exercise  by  the  queen  in  council  of  the  power  of  disal 
,    V     V.'  v^>^       lowiuir  acts  of  the  dominion  parliament,   because  foi 


l 


r 


parliament,  because  for 
any  such  proceeding  in  Canada  ministers  would  be  held 
responsible  to  the  Canadian  people. 

The  governor-general  cannot  be  supposed  to  be  cnpa- 
ble  of  determining  such  questions  upon  his  own  unaided 
judgment ;  neither  ought  he  to  act  upon  the  counsel 
of  persons  who  are  not  his  constitutional  advisers, 
or  upon  instructions  from  the  colonial  office,  which 
would  render  the  imperial  authorities  responsible  in 
the  case.     The  important  and  difficult  questions  arising 


DOMINION  CONTROL  IN  MATTERS  OF  LEGISLATION.     339 

out  of  the  exercise  of  this  prerogative  can,  therefore, 
be  prudently  and  wisely  solved  by  the  governor-gene- 
ral only  as  he  acts  upon  the  advice  of  his  responsible 
ministers,  who,  whether  they  be  more  or  less  account/- 
able  for  the  same,  will  naturally  influence  his  decision 
very  materially. 

This  report  was  duly  transmitted  to  the  colonial 
secretary,  who  in  a  despatch  to  the  governor-general 
of  October  31, 1876,  commented  thereon.  He  acknow- 
ledged the  force  of  Mr.  Blake's  arguments,  and  the 
propriety  of  his  conclusions  in  general,  —  which,  he 
allowed,  were  sustained  by  high  authorities  in  Eng- 
land, —  but  still  inclined,  for  his  own  part,  to  prefer  a 
construction  of  the  British  North  America  act  which 
would  permit  of  the  governor-general  acting  inde- 
pendently of  his  ministers  in  deciding  upon  the  allow- 
ance or  disallowance  of  provincial  acts. 

Admitting  that  the  governor-general  could  not  and 
ought  not  to  act  upon  his  own  unaided  judgment,  the 
colonial  secretary  suggested  that  he  should  invariably 
have  recourse  to  the  advice  of  his  ministers  before 
deciding  upon  such  questions.  He  would  then  be  acting 
undi'}'  the  advice  of  his  ministers,  although  he  might  not 
be  willing  to  act  nccorcUmf  to  their  advice. 

But  this  conclusion  failed  to  satisfy  Mr.  Blake.  In  a 
further  report,  in  answer  to  the  aforesaid  despatch,  the 
minister  of  justice  demurs  to  the  assumption  that  the 
governor-general  is  aided  by  his  ministers'  advice,  when 
he  arrives  at  a  decision  adverse  thereto,  which  must  bo 
based  upon  opposite  considerations,  entertained  solely 
by  himself  And  he  reaffirms  the  position  for  which  he 
had  contended  throughout  this  controversy, "  that,  under 
the  letter  and  spirit  of  the  constitution,  ministers  nuist 
be  responsijjle  for  the  oovernor's  action."  "  He  regrets 
that  the  discussion  has  not  resulted  in  an  agreement, 
but  ventures  to  hope  that  it  has,  at  any  rate,  decreased 


''i 


Settle- 
ment of 
controver- 
sy be- 
tween im- 
perial and 
dominion 
govern- 
ments. 


Furtlier 
points 


340       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

the  probability  of  future  difficulty  on  a  question  of  very 
grave  importance."  This  report  was  approved  by  the 
governor-general  in  council,  on  Nov.  21,  1876,  and 
ordered  to  be  transmitted  to  the  secretary  of  state  for 
the  colonies.  On  Jan.  4,  1877,  its  receipt  was  acknow- 
ledged by  the  colonial  secretary,  but  without  further 
comment  or  observation.^ 

In  r  viewing  this  ably  conducted  correspondence,  we 
may  remark  that  the  controversy  between  the  imperial 
nd  dominion  governments  took  a  different  shape  as 
the  discussion  proceeded.  At  first,  a  distinct  claim  was 
preferred  by  her  Majesty's  secretary  of  state  for  liberty 
to  review,  and  under  certain  exceptional  circumstances 
to  disallow,  provincial  legislation,  through  instructions 
to  the  governor-general  as  an  imperial  officer.  After- 
wards this  ground  was  abandoned,  and  the  constitu- 
tional propriety,  if  not  the  abstract  right,  of  the  imperial 
government  to  interfere  with  provincial  legislation, 
unless  in  extraordinary  cases  and  under  very  exceptional 
circumstances,  was  no  longer  urged.  The  secretary  of 
state  then  claimed  th..t  the  governor-general  personally 
had  an  "independent"  right  (without  the  consent  of 
his  ministers,  whether  actual  or  prospective)  to  deter- 
mine upon  the  expediency  of  allowing  or  disallowing 
provincial  statutes ;  and  in  proof  of  this  contention  he 
appealed  to  the  wording  of  the  British  North  America 
net.  Mr.  Blake's  argument  was  directed  to  show  the 
inconsistency  of  this  position,  with  an  acknowledgment 
of  tlie  principle  of  self-government  in  matters  of  local 
concern. 

It  would  seem,  however,  that  some  points,  which  are 
material  to  the  solution  of  the  question,  were  over- 
looked on  both  sides.     They  may  be  stated  as  follows  : 

(1.)  The  ninetieth  section  of  tlie  British  North  Ame- 
rica act,  which  substitutes  "  the  governor-general  "  for 


•  Canada  Sess.  Papers,  1877,  no.  89,  pp.  449-458. 


\m 


)NIES. 

a  of  very 
d  by  the 
876,  and 
state  for 
acknow- 
t  further 

lence,  we 
imperial 
shape  as 
3laim  was 
3r  liberty 
instances 
Btructions 
r.     After- 
constitu- 
3  imperial 
igislation, 
:ceptional 
jretary  of 
ersonally 
onsent  of 
to  deter- 
sallowing 
ention  he 
America 
show  the 
ledgment 
s  of  local 

which  are 
ere  over- 
follows  : 
rth  Ame- 
eral"  for 


J 


DOMINION  CONTROL  IN  MATTERS  OF  LEGISLATION.     341 

"  the  queen,"  as  the  executive  authority  which  is  ulti- 
mately empowered  to  give  or  withhold  the  assent  of 
the  Crown  to  bills  passed  by  the  provincial  legislatures, 
and  which  the  secretary  of  state  for  the  colonies  would 
construe  as  applying  to  the  governor-general,  acting 
independently  of  his  ministers,  refers  not  merely  to  the 
allowance  or  disallowance  of  provincial  enactments, 
but  likewise  to  the  action  of  "  the  governor-general " 
in  relation  to  appropriation  and  tax  bills,  and  in  the 
recommendation  of  money  votes.  All  these  matters  are 
embraced  in  the  same  category,  and  if  the  governor- 
general  can  act,  under  the  powers  conferred  upon  him 
by  this  clause,  independently  of  his  ministers,  in  the  one 
case,  he  can  do  so,  of  equal  right,  in  all  the  cases  enu- 
merated. This  would  be  obviously  un  onstitutional, 
which  plainly  shows  that  the  secretary  of  state's  inter- 
pretation of  the  clause  is  untenable.  It  is  then  more 
reasonable  to  infer  that  the  term  "governor-general," 
in  this  clause,  was  not  made  use  of  simply  for  the  sake 
of  brevity,  and  to  avoid  needless  repetition,  which  would 
be  an  unwarrai  table  excuse  for  obscure  phraseology  in 
such  an  imporvant  and  authoritative  document,  but  as 
being  a  sufficient  and  appropriate  antithesis  to  the  term 
employed  to  designate  the  imperial  executive  authority 
in  the  fifty-sixth  clause  (which  is  intended  to  be  read 
in  connection  with  clause  ninety)  and  where  the  term 
"  queen  in  council  "  is  used  in  reference  to  the  disallow- 
ance of  dominion  acts.  Of  course  the  queen,  in  declar- 
ing her  approval  or  disapproval  of  such  enactments,  can 
only  do  so  "  in  council."  In  the  corresponding  action  of 
the  governor-general,  in  reference  to  provincial  legisla- 
tion, it  is  equally  clear  that  he  should  act  "  in  council :  " 
inasmuch  as  his  functions  are  performed,  in  a  colony 
where  responsible  government  prevails,  under  the  same 
constitutional  restrictions   as   those  of  the  sovereign, 


I    f 


h   ill 
'in 


( . 


342       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES, 

in   rtilation  to  bills  passed  by   the  Imperial  Parlia- 
ment.* 

(2.)  As  a  matter  of  fact,  ever  since  the  passing  of  the 
British  North  America  act,  the  governor-general  of 
Canada  has  invariably  decided  upon  the  allowance  or 
disallowance  of  provincial  laws,  on  the  advice  of  his 
ministers,  and  has  never  asserted  a  right  to  decide 
otherwise.  He  has  been  always  content  to  exercise 
this  prerogative  under  the  same  constitutional  limita- 
tions and  restraints  which  apply  to  all  other  acts  of  ex- 
ecutive authority  in  a  constitutional  monarchy. 

(3.)  If,  on  the  contrary,  the  governor-general  had 
assumed  tliat  he  was  competent  to  act  in  such  cases  in- 
dependently of  his  ministers,  it  could  only  have  been 
in  virtue  of  his  position  as  an  imperial  officer,  himself 
responsible  to  his  sovereign,  and  for  whose  acts  in  that 
capacity  the  queen's  ministers  were  directly  account- 
able to  the  Imperial  Parliament.  But  it  has  been 
distinctly  and  repeatedly  declared  by  her  Majesty's 
government  (as  will  be  seen  in  the  precedents  herein- 
after cited)  that  the  queen  in  council  claims  no  juris- 
diction over  provincial  legislation  ;  that  the  only  tribunal 
beibre  which  any  provincial  enactment  could  be  ques- 
tioned was  that  of  the  governor-general ;  and  that  no 


•  Since  these  paj^es  were  written, 
I  o]\servo  tliis  point  ably  stiitod  l)y 
the  premier  of  the  doniinion,  Sir 
John  A.  Macdonald,  in  a  recent  of- 
ficial mcniorandiiin.  He  says  : 
"  Long  before  confederation,  the 
principle  of  wiiat  is  known  as  '  re- 
8iK)nsibl('  government '  had  been  con- 
ceded to  the  colonies  now  nnitcd  in 
the  dominion.  .  .  .  Whetlier  there- 
fore, in  any  case,  power  is  given  to 
the  governor-general  toactin<livi(hi- 
ally  or  with  the  aid  of  his  conncil, 
the  act,  as  one  within  the  scope  of 
the  Canadian  constitution,  must  be 
on  the  advice  of  a  responsilile  mi- 
nister.    The  distinction  drawn  iu 


the  statute  between  an  act  of  the 
governor  and  an  act  of  the  governor 
in  council  is  a  technical  one,  and 
arose  from  the  fact  that  in  Canada, 
for  a  long  period  before  confedera- 
tion, certain  acts  of  administration 
were  recpured  hy  law  to  be  done 
under  tlje  sanction  of  an  order  in 
council,  while  others  did  not  reipiire 
that  formality.  ]n  both  cases,  how- 
ever, since  responsible  government 
has  been  conceded,  such  acts  have 
always  been  performed  under  the 
advice  of  a  responsible  ministry 
or  minister."  (."ommons  Papers, 
1878-79,  C.  2445,  p.  109. 


l»  i' 


in 


DOMINION  CONTROL  IN  MATTERS  OF  LEGISLATION.      343 

imperial  secretary  ^f  state  would  undertake  to  advise 
an  interference  by  the  Crown  with  the  action  or  deter- 
mination of  the  governor-general  in  such  matters. 
Should  there  be  an  apparent  failure  of  justice  by  reason 
of  a  provincial  act  being  left  to  its  operation,  redress 
could  only  be  obtained  upon  application  to  the  provin- 
cial legislature  from  whence  the  act  had  emanated ;  or, 
in  the  event  of  a  presumption  that  a  particular  statute 
had  been  illegally  enacted,  by  recourse  to  a  court  of 
competent  jurisdiction  to  decide  whether  or  not  the 
statute  was  valid  and  effectual. 

On  this  head,  it  has  been  pertinently  remarked  by  an 
eminent  Canadian  judge,  that  "it  is  not  to  be  expected 
that  the  governor-general  in  council  will  be  so  far  able 
to  examine  all  acts  passed  by  the  provincial  legislatures 
as  to  foresee  all  possible  constitutional  difficulties  that 
may  arise  on  their  construction;  and,  therefore,  an  omis- 
sion to  disallow  is  not  to  be  deemed  in  any  manner  as 
making  valid  an  act,  or  a  part  of  an  act,  which  is 
essentially  void,  as  being  against  the  constitution."  ** 

In  deciding  upon  the  validity  or  exped.     -y  of  pro-  ConstUu- 
vincial  enactments,  the  governor-general  in  council  has  powiTsof 
no  arbitrary  discretion.     The  decision  of  the  dominion  so^'^rnor- 
government  upon  all  such  questions  must  be  in  con- 
formity with  the  letter  and  spirit  of  the  British  North 
America  act.     That  statute  has  been  correctly  termed 
"  the  great  charter  of  our  constitution."     It  recognizes 
and  guarantees  to  every  province  in  the  confederation 
the  right  of  local  self-government,  in  all  cases  within 
the  competency  of  the  provincial  authorities.     And  it 
does  not  contemplate  or  justify  any  interference  with 
the  exclusive  powers  which  it  entrusts  to  the  legisla- 
tures of  the  several  provinces  ;    except  in  regard   to 
acts  which  transcend  the  lawful  bounds  of  provincial 

••  C.  J.  Harrison,  in  Leprolion  v.  the  City  of  Ottawa  (citing  the  Queen 
V.  Wood,  5  E.  &  B.  49,  55),  40  U.  C.  11.  400. 


{ 


tj3l 


f 


'»'■ 


PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


\i 


jurisdiction,  or  which  assert  a  principle,  or  prefer  a 
claim,  that  might  injiiriouslj  affect  the  interests  of 
any  other  portions  of  the  dominion,  or,  in  the  case  of 
acts  which  diminish  rights  of  minorities  in  the  particu- 
//  lar  province  in  relation  to  education,  that  had  heen 
conferred  by  law  in  any  province  prior  to  confedera- 
tion.'" These  principles  must  be  studiously  kept  in  view, 
and  steadily  maintained,  whenever  the  legislation  of 
any  province  is  submitted  to  the  constitutional  criti- 
cism of  the  governor  in  council.  Otherwise,  there 
would  be  a  danger  not  merely  of  the  infraction  of 
local  rights  guaranteed  b}  the  l-^nperial  Parliament, 
but  as  a  necessary  result  of  v  such  violation  of  the 
principle  of  local  self-govern  em,  of  a  disruption  of 
the  bond  which  unites  together  the  :^overal  portions 
of  the  Canadian  dominion.  And  these  considerations 
should  equally  influence  the  two  houses  of  the  domi- 
nion parliament  whenever  they  are  invited  to  express 
an  opinion  upon  questions  which  it  may  appertain  to 
the  provincial  authorities  to  determine. 

It  is,  indeed,  a  supposable  case,  that  a  provincial  act 
might  come  under  review  by  the  dominion  governor  in 
council  which  should  be  found  to  contain  provisions 
"  of  an  extraordinary  nature  and  importance," — such  as, 
if  the  bill  had  been  enacted  by  the  dominion  parlia- 
ment, the  governor  under  the  royal  instructions  would 
be  required  to  reserve  it  for  the  signification  of  the 
royal  pleasure  thereon,  —  and  that  the  Canadian  privy 
council  might  deem  it  expedient  to  advise  that  this 
particular  .neasure  should  be  permitted  to  go  into  ope- 
ration, contrary  to  the  opinion  of  the  governor-general. 


«  British   North    Amorica    Act,  passed  by  the  Ontario  legislature  : 

1807,    sees,  fl'i-95.      And   see   me-  Ontario  Sess.  Papers,  First  Session, 

niorandiiin   of   Sir  John    A.    Mac-  1874,    no.  10.     And    Earl  Carnar- 

donald  (minister  of  justice)  of  Aug.  von's  despatch  to  Earl  Dufferin,  of 

26,  I87;i,    in    reference   to   certain  Nov.  5,  1875.     See  further  on  this 

Orange  Society  incorporation  acts,  point,  post,  pp.  349-352. 


DOMINION  CONTROL  IN  MATTERS  OF  LEGISLATION.      345 

Whatever  proceedings  the  governor-general  might  be 
competent  to  take  in  such  a  contingency  in  order  to 
vindicate  his  own  judgment  in  the  matter,  it  is  obvious 
that  under  the  British  North  America  act  he  would  not 
be  at  liberty  to  reserve  the  bill  for  the  consideration  of 
the  Crown,  unless  upon  the  advice  and  with  the  consent 
of  his  ministers  for  the  time  being,  inasmuch  as  it  has 
been  authoritatively  stated,  on  behalf  of  her  Majesty's 
government,  that  "  the  power  of  confirming  or  disal- 
lowing provincial  acts  is  vested  by  statute  in  the  go- 
vernor-general of  the  dominion,  acting  under  the  advice 
of  his  constitutional  advisers ;  "  and  that  that  statute 
does  not  confer  upon  "her  Majesty  in  council  any 
jurisdiction  over"  such  questions,  though  "it  is  con- 
ceivable that  the  effect  and  validity  of"  any  provincial 
enactment  might  at  some  future  time  "  be  brought 
before  her  Majesty  on  an  appeal  from  the  Canadian 
courts  of  justice."  *^ 

Before  we  proceed  to  consider  the  constitutional 
practice  which  regulates  the  exercise  by  the  dominion 
government  of  its  lawful  control  over  provincial  legisla- 
tion, we  may  suitably  direct  attention  to  a  series  of 
precedents  which  confirm  and  estabhsh  the  points  we 
have  already  ascertained ;  namely,  that  under  the  British 
North  America  act  the  control  of  the  Crown  over  the 
provinces  of  the  Canadian  dominion  is  now  exercised 
not  directly  by  imperial  authority,  but  indirectly 
through  the  instrumentality  of  the  dominion  govern- 
ment, and  that  it  is  incumbent  upon  the  governor-gene- 
ral in  council,  in  the  exercise  of  his  constitutional 
supremacy,  to  respect  the  rights  of  the  provinces  in 
matters  of  local  legislation,  so  far  as  the  same  are  de- 
fined by  the  British  North  America  act. 

*  Opinion  of  the  lord  president  the  legal  right  of  interpretation  and 

of  the  privy  council  (the  Marquis  of  control    over  provincial  legislation 

llipoii),  ill  Decenil)er,  1872,  quoted  is  exercised  by  the  courts  of  law  is 

in  Canada  Sess.  Pai)ers,  1876,  no.  elsewhere    considered.       See  jiostf 

116,  p.  «5.     The  extent  to  which  p.  375. 


Constitu- 
tional 
powers 
of  gover- 
nor-gene- 
ral. 


Pre.  .- 
dents  on 
his  ques* 
uou. 


346       PARLIAMENTARY  GOVERNMLNT  IN  THE  COLONIES. 

New  In  1871,  an  act  passed  by  the  provincial  legislature  of  New 

wkk"*  Briini^wick,  in  relation  to  common  schools,  came  under  review 
school  act.  by  the  dominion  government.  Numerous  petitions,  from  the 
Roman  Catholic  inhabitants  of  the  province,  were  presented 
to  the  governor-general,  praying  that  this  act  might  be  disal- 
lowed, as  being  an  infringement  upon  the  rights  which  they 
enjoyed,  as  a  religious  denomination,  at  the  time  of  confede- 
ration. But  whereas  the  provincial  legislatures  possess,  under 
the  ninety -third  section  of  the  British  North  America  act, 
exclusive  powers  of  legislation  in  educational  matters,  —  sub- 
ject only  to  the  right  of  the  dominion  parliament  to  make 
remedial  laws,  under  certain  specified  circumstances,  —  tlie 
governor-general  was  advised  by  the  minister  of  justice,  on 
Jan.  20,  1872,  that  he  had  no  right  to  intervene,  and  should 
allow  the  act  in  question  to  go  into  operation.  If  any  reli- 
gious body  was  aggrieved  thereby,  they  "  should  appeal  to 
the  provincial  legislature,  which  has  the  sole  power  to  grant 
redress." 

However,  on  May  30,  1872,  a  motion  was  made  in  the  do- 
minion House  of  Commons  for  an  address  to  the  governor- 
general,  praying  him  to  disallow  the  aforesaid  statute.  To 
this  motion  an  amendment  was  proposed,  deprecating  such  a 
proceeding,  on  the  ground  that  the  act  was  strictly  within 
the  competence  of  the  provincial  legislature,  whose  powers 
ought  not  to  be  impaired  by  the  dominion  parliament.  It 
was  then  proposed,  as  an  amendment  to  this  amendment,  to 
address  her  Majesty  in  favour  of  the  amendment  of  the 
British  North  America  act,  so  as  to  secure  to  every  religious 
denomination  in  New  Brunswick  the  rights  which  they  en- 
joyed at  the  time  of  the  union  with  Canada  in  regard  to 
schools.  These  several  motions  were  negatived,  and  a  reso- 
lution agreed  to,  expressing  regret  that  the  aforesaid  New 
Brunswick  statute  should  have  proved  unsatisfactory  to  the 
Roman  Catholics  in  that  province,  and  a  hope  that  it  might 
be  so  modified  at  the  next  session  of  the  provincial  legislature 
as  to  remove  any  just  cause  of  discontent ;  and  declaring  that 
it  is  expedient  to  obtain  the  opinion  of  the  crown  law  offi- 
cers in  England  (and  if  possible  of  the  judicial  committee  of 
the  privy  council),  as  to  the  right  of  the  New  Brunswick  legisla- 
ture to  make  such  changes  in  the  school  law  as  would  deprive 
Roman  Catholics  of  the  privileges  they  possessed,  prior  to  the 


.ONIES. 

ire  of  New 
der  review 
s,  from  the 
!  presented 
it  be  disal- 
t'hich  they 
>f  confede- 
3CSS,  under 
nerica  act, 
Ln-s,  —  sub- 
it  to  make 
ices,  —  the 
justice,  on 
and  should 
f  any  reli- 
appeal  to 
er  to  grant 

in  the  do- 
I  governor- 
atute.     To 
;ing  such  a 
3tly  within 
)se  powers 
iment.     It 
iidment,  to 
int   of  the 
y  religious 
h  they  en- 
regard  to 
ind  a  reso- 
3said   New 
tory  to  the 
t  it  might 
egislature 
aring  that 
n  law  oflft- 
nmittee  of 
ck  legisla- 
ild  deprive 
ior  to  the 


' 


DOMINION  CONTROL  IN  MATTERS  OF  LEGISLATION.      347 

union,  in  respect  of  religious  education ;  so  as  to  determine 
whether  the  parliament  of  Canada  would  be  warranted  to 
intervene,  under  the  fourth  sub-section  of  the  ninety-third 
clause  of  the  IJritisli  North  America  act,  with  remedial  legis- 
lation in  their  behalf. 

Application  was  accordingly  made,  through  the  governor- 
general,  for  the  opinion  of  the  imperial  crown  law  oflicers  on 
tiiis  (piestion.  Amongst  the  papers  submitted  to  these  offi- 
cers was  a  memorandum  from  the  Executive  Council  of  New 
Brunswick,  dated  Dec.  23,  1872,  protesting  against  any  inter- 
ference, by  the  dominion  House  of  (.'ommons,  with  the  ex- 
clusive powers  assigned  to  the  provincial  legislature  by  the 
confederation  act,  and  deprecating  any  refc'ence  of  the  case 
to  the  law  officers  of  the  Crown  in  England.  The  competency 
of  the  New  Brunswick  legislature  exclusively  to  frame  laws 
on  this  subject  was  afterwards  affirmed  by  the  unanimous 
judgment  of  the  Supreme  Court  in  that  province,  who  further 
held  that  the  dominion  parliament  possessed  no  power  of  re- 
medial legislation  in  the  matter." 

Meanwhile,  in  compliance  with  the  aforesaid  resolution  of 
the  Canadian  Commons,  the  crown  law  officers,  as  well  as  the 
lords  of  the  privy  council,  were  applied  to,  by  the  governor- 
general,  for  their  opinion  upon  the  case.  On  Nov.  29,  1872, 
and  on  Feb.  12  and  April  7,  1873,  the  law  otKcers  of  the 
Crown  reported  that,  upon  full  consideration  of  the  question 
before  them,  they  agreed  with  the  dominion  minister  of  justice 
that  the  provincial  legislature  was  competent  to  pass  the 
school  act,  and  that  no  case  had  been  made  out  to  warrant 
an  interference  with  that  statute  ;  or  that  would  "  bring 
into  operation  the  restraining  powers,  or  the  powers  of  ap- 
peal to  the  governor-general  in  council,  and  the  powers  of 
remedial  legislation  in  the  parliament  of  the  dominion,  con- 
tained in  the  ninet3'-third  section  "  of  the  British  North  Ame- 
rica act.  The  lord-i)resident  of  the  council,  under  date  of 
Dec.  13,  1872,  declined  to  interfere,  for  the  reason  already 
stated ;  namely,  that  the  power  of  confirming  or  disallowing 
provincial  acts  was  vested  by  law  absolutely  and  exclusively 
in  the  governor-general  in  council.^ 


•  Pugsley,  New  Brunswick  Reports,  vol.  i.  p.  273. 

*  Canada  Sess.  Papers,  1877,  uo.  89,  pp.  «i43-428.    And  see  ante,  p.  330. 


i'^    i 


!    IS 


1    l-l 


f^ 


^i' 


i  :ir 


I 

iii 


348       PARLIAMENTARY  GOVERNMENT  IN  TIIE  COLONIES. 

New  Upon  the  Commons  of  Canada  bcin^  notified  of  tliis  result, 

wick"  ^^^^y  "n^'^cd  to  another  resolution,  on  May  14,  187;5,  wherein 
Bchoolact.  they  declared  their  opinion  that  the  parties  af^grieved  by  the 
New  Brunswick  school  act  of  1871,  should  liave  an  opjior- 
tunity  of  bringing  the  matter  judicially  bch)re  the  privy 
council ;  and  that  meanwhile  the  governor-general  should  be 
advised  to  disallow  certain  acts  passed  at  the  last  session 
of  the  New  Brunswick  legislature,  to  legalize  assessments 
made  under  that  statute,  and  to  amend  the  same.  This  reso- 
lution was  carried  against  ministers.  His  Excellency,  how- 
ever, being  advised  that  the  aforesaid  statutes  sought  to  be 
disallowed  were,  equally  with  the  act  of  1871,  within  the 
competence  of  the  provincial  legislature,  authorized  the  mi- 
nister of  justice  to  inform  the  House  of  Commons  that  he 
was  not  prepared  at  i)resent  to  comply  with  their  recjuest ; 
but  that,  in  accordance  with  the  advice  of  his  ministers,  he 
should  submit  the  question  for  the  consideration  of  the  impe- 
rial government. 

The  Supreme  Court  of  New  Brunswick  having,  as  we  have 
seen,  affirmed  the  constitutionality  of  the  act  of  1871,  and  no 
appeal  from  their  judgment  having  as  yet  been  made  to  the 
privy  council,  notwithstanding  that  the  dominion  parliament 
had  granted  moneys  to  defray  the  cost  of  an  appeal,  the  Exe- 
cutive Council  of  New  Brunsw'ick,  on  May  19,  1873,  addressed 
a  further  j)rotest  to  the  governor-general  against  the  inter- 
ference of  the  House  of  Commons  in  the  matter.  The  Coun- 
cil claimed  for  the  dominion  government  entire  freedom  in 
dealing  with  questions  expressly  reserved  to  the  control  of 
the  provincial  legislatures,  and  asserted  that  the  House  of 
Commons  ought  to  abstain  from  endeavouring  to  control  the 
government  in  eases  wherein  the  dominion  parliament  had 
no  right  to  legislate.  They  declared  that  the  establishment 
of  a  contrary  principle  would  destroy  the  federal  character 
of  the  union  and  the  indei)endence  of  the  local  legislatures. 

The  governor  general  rejjoited  these  particulars  to  the  sec- 
retary of  state  for  the  colonies  on  May  27,  1873,  with  a  re- 
quest for  instructions  as  to  the  course  he  should  pursue.  The 
colonial  secretary  in  his  repl}"",  dated  June  30,  1873,  informed 
the  governor-general  that  tlie  acts  in  question,  being  within 
the  powers  of  the  local  legislature  and  in  agreement  with  the 
general  spirit  of  the  act  of  confederation,  ought  to  be  allowed 


I' 


:.ONIES. 

this  result, 

'8,  wlierein 

ved  by  the 

sill  oppor- 

thc   piivy 

should  bo 

ust  session 

issosHiiieiits 

Tliis  reso- 

eiicy,  liow- 

uglit  to  be 

within  the 

:ed  tlie  mi- 

iiis  that  he 

ir  re(iuest ; 

inisters,  he 

t'  the  impe- 

as  we  have 
S71,  and  no 
nade  to  the 
parliament 
il,  the  Exe- 
,  addressed 

the  inter- 
The  Coun- 
'roedom  in 

control  of 

House  of 
control  the 
iimeiit  had 
ablishment 
character 

slatures. 

to  the  sec- 

with  a  re- 
rsue.  The 
J,  informed 

ing  within 
it  with  the 
be  allowed 


DOMINION  CONTROL  IN  MATTERS  OF  LEGISLATION.      340 

to  remain  in  force,  and  could  not  constitutionally  be  interfered 
with  by  the  House  of  Commons.  Otherwise,  the  exclusive 
right  of  legislation  in  such  questions,  conferred  by  the  act 
of  union  upon  the  provincial  legislature,  would  be  virtually 
annulled." 

At  this  juncture,  another  occasion  arose  for  testing  the 
legality  of  the  common-school  acts  before  tiie  courts  of  law, 
and  of  obtaining,  as  the  result  proved,  a  decision  of  the  judi- 
cial committee  of  the  privy  council  thereon.  In  Hilary  term, 
1878,  a  Mr.  Maher,  a  Roman  Catliolic  resident  in  the  town 
of  Portland,  New  Hrunswi(;k,  who  had  been  assessed  under 
the  said  acts,  applied  to  the  Supreme  Court  for  a  rule  nm, 
calling  on  the  town  council  to  show  cause  why  a  writ  of 
ceHiorari  should  not  be  issued  to  bring  the  order  of  assess- 
ment into  court,  with  a  view  to  its  being  quashed;  on  the 
ground  that  the  act  under  which  the  assessment  was  made 
was  ultra  vires,  and  in  contravention  of  the  Hiitish  North 
America  act.  The  court,  however,  upheld  tlie  legality  of  the 
statutes,  and  of  the  assessments  made  under  the  same.  An 
appeal  was  then  brought  before  the  judicial  committee  of  the 
privy  council  from  this  decision.  It  was  argued  in  July, 
1874;  but  their  Lordships,  without  calling  upon  the  respon- 
dents, gave  judgment  confirming  the  decision  of  the  court 
below,  and  dismissing  the  appeal  with  costs.'' 

The  exclusive  jurisdiction  of  the  New  Hrunswick  legisla- 
ture in  the  disposal  of  this  question  liaviiig  been  thus  acknow- 
ledged, as  well  by  the  imperial  and  dominion  governments  as 
also  by  the  privy  council,  no  alternative  remained  to  the  dis- 
sentients but  to  appeal  to  the  New  Brunswick  Assembly. 
Accordingly,  in  the  years  1873  and  1874,  numerous  petitions 
were  preseiited  to  that  body,  asking  for  such  an  amendment 
of  the  common-school  act  of  1871,  as  would  secure  to  Roman 
Catholics  in  that  province  "separate  schools."  But,  after 
careful  inquiry  and  consideration,  tlie  House  of  Assembly  on 
March  4,  1874,  resolved,  that  it  was  inexpedient  to  grant 
special  rights  and  privih  'es,  in  respect  to  denominational 


«  Canada    Sess,    Papers,   1874,  will  be    found     in     the     London 

no.  2.-),  pp.  8-i;3.  "  Times,"  of  July  18,   1874.  p.  11, 

^  Ex  parte  Maher  is  an  unreported  col.  4 ;  also  in  the  Toronto  "  Globe," 

case.     Tiie  judgment  of  the  judicial  of  July  31,  1874. 
committee  is  nlao  uure2X)rttid,  but 


>  i 

1   i 

■i  / 


; 


350       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

New  education,  to  any  clasi.  of  persons.     The  house  also  protested 

w["k**        against  any  attemjjts,  either  by  the  Imperial  Parliament  or 
school  aat.  b}'^  the  dominion  government,  to  impair  or  curtail  the  privi- 
leges and  powers  of  the  provincial  legislature,  without  its 
own  previous  consent  and  the  sanction  of  the  people.' 

On  March  10,  1875,  the  dominion  House  of  Commons  ad- 
dressed the  queen,  representing  the  inexpediency  and  danger 
of  any  imperial  legislation  that  would  encroach  upon  the 
powers  reserved  to  the  provinces  by  the  British  North  Ame- 
rica act ;  but  expressing  regret  that  their  anticipations  (on 
May  20,  1872)  that  tlie  Now  Brunswick  school  act  would  be 
so  modified  by  the  provincial  legislature  as  to  remove  any  just 
ground  of  discontent  had  not  been  realized  ;  and  praying  her 
JNIajesty  to  exert  her  influence  with  that  legislature  to  bring 
about  tlie  desired  result.  This  address  was  forwarded  to  the 
queen  through  tlic  proper  channel. 

On  Oct.  18,  1875,  a  reply  to  tliis  address  was  embodied 
in  a  despatch  from  the  colonial  secretary  (Lord  Carnarvon), 
which  concurred  in  the  opinion  tliat  imperial  legislation  to 
curtail  the  powers  vested  by  law  in  the  provincial  legislature 
would  be  an  undue  interference  with  the  local  constitutions 
and  with  the  terms  of  union.  But  eipuilly  the  secretary  was 
unable  to  advise  her  Majesty  to  take  action  upon  tliis  addres  '. 
inasmuch  as  lier  direct  intervention  in  the  matter  would  I . 
liable  to  the  same  objections.  lie  could  only  ex})ress  a  strong 
hope  that  the  ruliii^;-  majority  in  New  hrmiswick  might  be 
disposed  so  to  exercise  their  undoubted  rights  as  to  I'cmove 
•  all  rcasoiiai)le  causes  of  complaint,  and  so  avoid  the  "serious 

inconvenience  [ofj  bringing  under  public  discussion  in  the  do- 
minion legislature  a  controverted  question  which  may  possibly 
engender  much  heat  and  irritation,  and  over  which  it  has  no 
jurisdiction. "J 

This  ^x[)ectation,  however,  has  not  been  realized ;  and 
separate  schools  are  not  yet  established  by  law  in  New 
Brunswick. 

A  question,  similar  in  principle  to  the  foregoing,  was  raised 
in  1877,  in  regard  to  the  public-schools  act,  ])assed  in  that 
year  by  the  legislature  of  the  province  of  Prince  Edward 
Is)'iud. 

<  rntijulii  Soss.  Papers,  1877,  no.  HO,  p.  130. 
i  Ibid.  p.  131. 


OLONIES. 

Iso  protested 
iuliament  or 
ail  the  privi- 
,  without  its 
ople.' 

Commons  ad- 
y^  and  danger 
ch  upon  the 
North  Ame- 
?ipations  (on 
act  woukl  be 
10 ve  any  just 
I  praying  lier 
;ure  to  bring 
arded  to  the 

Tiis  embodied 
Carnarvon), 
legishition  to 
al  Iccjishiture 
constitutions 
secretary  was 
his  addres  ^ 
ter  wouUl  I  - 
'CSS  a  strong 
3k  might  be 
IS  to  remove 
\ie  "serious 
on  in  tlio  do- 
may  possibly 
ch  it  has  no 

•alizod ;  and 
aw  iu  New 

E^,  was  raised 
ssed  in  that 
nee  Edward 


DOMINION  CONTROL  IN  MATTERS  OF  LEGISLATION.     351 

That  act  repealed  all  existing  laws  on  the  same  subject,  and  rrinco  Ed- 
made  new  provision  on  behalf  of  education  in  the  island.    IJut,  J^"*"*!^  *^' 
accordmg  to  the  law  oi  the  provmce,  the  system  of  education   school  act. 
had  alwa}  s  been  non-sectarian  ;  and,  iu  this  respect,  the  new 
law  made  no  change. 

Nevertheless,  in  practice,  certain  exceptional  advantages  had 
been  enjoyed  under  the  old  law  by  various  French  schools  in  the 
island,  wherein  the  Roman  Catholic  minority  had  gradually 
introduced  books  not  legally  authorized  to  be  used.  Iiias- 
much  as  su(!h  exceptional  T)ractices  could  not  be  continued 
under  the  new  act,  the  Roman  Catholic  bishop  of  the  island 
memorialized  the  lieutenant-governor  to  reserve  the  bill  for  the 
consideration  of  the  governor-general  in  council,  on  the  ground 
that  it  interfered  with  the  rights  of  the  French  Roman  Catho- 
lic po[)ulation  to  possess  "  separate  "  schools,  —  wiiieh  rights, 
he  claimed,  were  intended  to  bo  secured  to  them,  luider  the 
ninety-third  section  of  the  British  North  America  act. 

The  lieutenant-governor  declined  to  reserve  the  bill,  but 
undertook  to  forward  any  memorial  against  it  to  the  dominion 
goverinuent,  by  whom  it  could,  if  illegal  or  unjustifiable, 
be  disallowed. 

In  transmitting  petitions  against  the  act  to  the  governor- 
general,  tiie  lieutenant-governor  also  forwarded  a  report  from 
his  executive  council  on  the  (question,  wherein  the  constitu- 
tionality of  the  a(;twas  ailirmed,  and  the  claims  urged  against 
it  for  separate  and  exclusive  rights  to  tlic  French  Roman  Catho- 
lics were  shown  to  be  unwarrant(?(l  by  law,  and  contrary  to  the 
policy  of  free,  non-sectarian  education,  heretofore  established 
in  the  island. 

The  minister  of  justice  for  Canada,  in  a  careful  review  of  the 
case,  dated  Nov.  8,  1877,  aHirmed  the  legality  of  the  pul)lic- 
schools  act,  and  denied  that  the  French  schools  above  referred 
to  by  the  Roman  Catholic  bishop  "  were  denominational  by  law, 
whatever  may  have  been  the  course  of  instruction  carried  on 
in  them  ;  "  or  that  any  deH(miination  had  the  right,  under  the 
previous  laws,  "to  establish  a  separate  or  denominatioiial 
scliool,  not  under  the  control  of  the  board  of  education." 

Admitling  that  .some  of  the  provisions  of  the  new  act  ap- 
peared to  be  severe  and  somewhat  arbitrary,  and  reconnnend- 
ing  that  the  attention  of  the  lieutenant-governor  should  Ix^ 
called  to  them,  to  consider  the  expediency  of  certain  amend- 


i^t 


['""'^'WT^T 


352       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


1 


I;  / 


I' 


ments  thereto,  the  minister  of  justice  was  nevertheless  of 
opinion  that  the  act  should  be  left  to  its  operation  ;  and  that 
it  was  not  "  proper  for  the  federal  authority  to  rttenipt  to  in- 
terfere with  tiie  details  or  accessories  of  a  measure  of  the  local 
legislature,  the  princijjles  and  objects  of  which  are  entirely 
within  their  province."  This  report  was  approved  by  the 
governor-genciral  in  council,  and  the  act  permitted  to  continue 
in  operation.'' 

Prince  Edward  Island  formed  no  part  of  the  dominion  of 
Canada,  under  the  British  North  America  act  of  18G7.  In 
INIay,  1873,  however,  the  legislature  of  that  colony  passed  ad- 
dresses to  her  Majesty,  expressing  their  desire  to  be  admitted 
into  the  confederation  ;  and,  as  speedily  as  possible,  their 
application  was  complied  with. 
Hiarlotto  In  the  same  session  in  which  these  addresses  were  agreed 
t^nwii  i.ark  ^Q^  ^  jjjii  y^r.^^  passed  by  the  island  legishiture,  to  vest  a  cer- 
tain crown  reserve  in  the  city  of  Charlottetown  for  the  pur- 
poses of  a  public  park.  This  bill,  at  the  close  of  the  session, 
in  June,  1873,  was  reserved  by  the  lieutenant-governor  for  the 
signification  of  the  (^neon's  pleasure. 

IJut,  in  view  of  the  ajijjroaching  inclusion  of  Prince  Edward 
Island  as  a  [)r()vincc  in  the  dominion  of  Canada,  her  Majesty 
was  advised  to  take  no  action  on  this  bill,  but  to  refer  it  to  the 
consideration  of  the  dominion  governnu'nt,  to  report  on  the 
propriety  of  its  receiving  the  royal  assent.  lJpo)i  the  report  of 
the  Canadian  minister  of  justice,  the  governor  in  council,  on 
Ajiril  3,  1H74,  advised  that  her  Majesty  should  be  humbly 
re(|U('ste<l  not  to  assent  to  the  bill.' 

For  uj)wards  of  half  a  century,  the  "land  question"  had 
been  a  Iruitl'id  source  of  agitation  in  Prince  Edward  Island. 
Bills  to  settle  this  question  were  re[)eatedly  passed  by  the 
island  legislature,  on  a  basis  which  was  deemed  objectionable 
by  the  imperial  government,  and  from  which,  accordingly,  the 
assent  of  the  Crown  was  withheld. 

In  August,  1873,  the  secretary  of  state  for  the  colonies 
wrote  to  inquire  of  the  governor-general  of  Canada  whether 
a  certain  bill  on  this  subji'ct,  passed  by  the  island  legislature 
in  the  previous  .icssion,  had  been  passed  before  or  after  the 


Prinro 
J'-dvviird 
Isluixi 
luMil  "^m 


^  Prinro  iMhtanl  Island  Assfm.  Jotirnnls,  1878,  p.  2,  Mid  ftppx.  A. 
'   Ciiiiiidji  SosH.  I'upers.  1877,  no.  bO,  p.  'Jl>. 


OLONIES. 

v^ertlieless  of 
in  ;  and  that 
tteinpt  to  iii- 
e  of  the  local 
are  entirely 
roved  by  the 
d  to  continue 

dominion  of 
of  18G7.  In 
ny  passed  ad- 
)  be  admitted 
jossible,  their 

^  were  agreed 
to  vest  a  cer- 
for  the  pur- 
){  the  session, 
)Yernor  for  the 

*rinoo  Edward 
II,  her  Majesty 
»refor  itto  the 
ro})ort  on  the 
)i  the  report  of 
in  council,  on 
Id  be  humbly 

juestion"  had 
Mhvanl  Island, 
passed  by  llie 
I  objectionable 
ccordingly,  the 

)r  tho  colonies 
iinada  whether 
and  legislature 
re  or  after  the 

>,  -nd  appx  A. 


DOMINION  CONTROL  IN  MATTERS  OF  LEGISLATION.     353 

admission  of  the  island  into  the  dominion.  "  In  the  latter 
event,"  the  secretary  observed,  "it  would  devolve  upon  your 
Lordship,  to  give  or  witiiliold  tlie  royal  assent."  In  reply, 
the  governor-general  stated  tliat  tliis  bill  was  passed  prior 
to  the  union  with  Canada.  Wl)ereui)on,  it  was  conlirmed  and 
assented  to  by  the  queen  in  council.'" 

In  1874,  an  act  to  amend  the  land  act  of  1873  was  intro- 
duced into  the  legishiture  of  the  province  of  Prince  Edward 
Island.  Certain  parties,  interested  therein,  petitioned  the 
secretary  of  state  for  the  colonies  that  tlie  royal  assent  miglit 
be  withheld  from  this  measure.  Whereupon  the  colonial  secre- 
tary forwarded  this  petition  to  the  governor-general  of  Canada, 
"  for  tlie  careful  consideration  of  his  ministers."  "  Some  time 
aft3r,  the  colonial  secretary  wrote  to  the  governor-general, 
in  regard  to  delays  in  deciding  upon  the  fate  of  this  bill,  that 
"although  it  is  as  a  rule  desirable  tliat  the  governor-general 
should  act  with  the  concurrence  of  his  ministers  in  respect  of 
the  allowance  or  disallowance  of  provincial  bills,  yet,  as  this 
measure  relates  to  a  question  which  had  been  repeatedly  and 
fully  considered  Ix^fore  th«;  admission  of  Prince  Edward  Island 
into  the  dominion,  there  may  not  be  the  same  necessity  as  in 
cases  originating  subsecjuently  to  the  union,  for  your  taking 
the  opinion  of  your  ministers  respecting  it."  He  therefore 
suggested  that  the  governor-general  might,  in  concert  with  the 
other  parties  interested  in  the  settlement  of  the  question, 
agree  to  refer  it  to  a  connnittee  of  arbitrators,  with  an  umpire 
selected  by  hiuiself."  The  governor-general,  however,  woidd 
not  assume  the  responsibility  of  personal  action  on  this  occa- 
sion, but  in  conformity  with  the  invariable  practice  in  such 
cases,  and  pursuant  to  an  order  in  council  ajtproving  a  report 
by  the  minister  of  justice,  advising  him  not  to  assent  to  this 
bill,  he  withheld  the  royal  assent  from  it.i' 

Tiie  propriety  of  this  course  was  admitted  by  the  imperial 
govennnent,  by  whom  certain  interested  parties,  who  had  pe- 
titioned the  Crown  on  the  subject,  w«'re  informed  that  this 
question  was  "  not  one  with  which  the  secretary  of  state  is 


u\ 


«"  Commons  Tupers,  1875,  vol.         p  Ihid.  pp.   7.')8-701.       Sen  also 
liii.  p.  7;i7.  Cixniula  Sess.  PaiMTH,  1875,  no.  01  ; 

"  //<u/.  p.  743.  11177,  no.  bO,  p.  77. 

0  Ibid.  p.  710. 

23 


r 


i 


'•^"^•^  Wt"*"  *  ■•"  ■^•  — 


■*"•*"  *r       .-'-v-^-^'T"' 


II 


Prince  Ed- 
ward Is- 
land land 
acts. 


354     PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

autliorizecl  to  deal,  by  the  constitution  of  Canada  ;  but  the 
decision  in  the  matter  rests  with  tlie  governor-general."  ' 

In  their  own  discretion,  the  dominion  government  after- 
wards app'oved  f>f  the  sug_,?stion  made  by  the  colonial  secre- 
tary for  thfi  .'lopf/intment  i)f  arbitrators  to  determine  land 
claimi^  •  I'd  .iubsequently  upon  their  recommendation  an  act 
was  pu:-sed  by  the  island  legislature  in  1875,  to  e^'ect  a  land 
court  to  firbitrate  in  the  settlement  of  such  questions,  which 
was  assented  to  by  the  governor-general  in  council.""  • 

Certain  of  the  resident  land-owners  in  the  island,  memorial- 
ized the  (jueen  to  disallow  this  act.  lint  upon  the  petition 
being  forwarded  to  the  secretary  of  state  for  the  colonies, 
through  the  governor-general,  they  received  for  answer  that 
the  secretary  had  not  felt  at  liberty  to  advise  her  Majesty  to 
interfere  with  the  course  taken  in  regard  to  this  act  by  the 
governor-general  of  Canada." 

In  1876,  the  provincial  legislature  of  Prince  Edward  Island 
passed  an  act  to  amend  the  land-i)urchase  act  of  1875,  and  to 
validate  certain  proceedings  had  under  it.  This  act  was  re- 
served for  the  consideration  of  the  governor-general's  pleasure. 
Interested  parties  petitioned  against  it.  The}''  admitted  the 
competency  of  tlie  local  legislature  to  pass  the  act  of  1875; 
but  sought  the  interference  of  the  governor-general  to  save 
them  from  the  effects  of  what  they  deemed  to  be  in  its  opera- 
tion an  unjust  and  oppressive  measure.  On  a  report  from  the 
minister  of  justice,  the  act  of  1870  was  disalk)wed,  as  being 
retrospective  in  its  action,  and  as  dealing  with  the  rights  of 
parties  now  in  litigation.* 

The  same  question  —  as  to  tb^  right  of  tV .,  imperial 
goveriniient  to  interpose,  wlietber  hy  action  or  't'y  advice, 
in  the  settlement  of  questions  within  the  undoubted 
jurisdiction  and  competency  of  the  provincial  legisla- 
tures to  determine  —  was  raised  in  the  case  of  two 
acts  passed  by  the  Ontario  legislature  in  1874,  respect- 
ing the  union  of  the  Presl)yterian  churches  in  that  pro- 


1  Cominons  Papers,  1875,  vol.  liii.  p.  750.     And  see  Hans.  Deb.  vol 
ccxxvi.  pp   J,  7. 

'  Coil  .1.  o<^  Pap^)rs,  1875.  vol.  liii.  p.  704. 

•  Ihul.  Ib75,  vol.  liii.  ]  .>.  7«iO-7(;8. 

•  Cuiiuda  Se.s.s.  Paiiers,  *877,  no.  80,  pp.  120-134. 


!'" 


OLONIES. 

ada  ;  but  the 
eiieval."  'i 
inment  after- 
colonial  secre- 
termino  land 
idation  an  act 

e^'eet  a  land 
stions,  which 
cil/ 
nd,  mcmorial- 

the  petition 

the  colonies, 

•  answer  that 

er  Majesty  to 

lis  act  by  the 

idwurd  Island 

1875,  and  to 

is  act  was  re- 

val's  pleasure. 

admitted  the 

act  of  1875; 

Mieral  to  save 

e  in  its  opera- 

'port  from  the 

wed,  as  being 

the  rights  of 

X.K.  imperial 
or  by  advice, 
3  undoubted 
icial  legisla- 
case  of  two 
874,  respect^ 
in  that  pro- 

Ilans.  Deb.  vol 


^ 


•DOMINION  oONTBOL  IN  .MATTERS  OF  LEGISLATION.      355 

vince,  and  m  relation  to  the  i'iwsbyterian  college  at 
Kingston,  c> '  'v»it>nly  called  Queen's  College." 

Petitions  addressed  in  the  first  instaiice  to  the  cloven. ^r- 
frenei'al,  and  afterwards  to  her  A  Majesty's  yccrctiiry  of  state, 
representing  the  serious  and  unprecedented  infrir*  ement  of 
rights,  both  spiritual  and  temporal,  and  the  setting  aside  of  a 
royal  charter,  passed  under  the  (aeat  .Seal,  proposed  to  be 
effected  by  these  locid  acts,  and  praying  that  they  might  not 
receive  the  royal  assent,  were  presented  to  the  governor-ge- 
neral, and  by  him  referred  to  the  consideration  of  the  minister 
of  justice. 

On  Nov.  23,  1875,  upon  the  recommendation  of  the  minis- 
ter of  justice,  it  was  decided  by  the  governor-general  in  coun- 
cil, in  the  case  of  one  of  the  acts  aforesaid  (38  Vict.  c.  75), 
that  it  should  be  left  to  its  operation,  inasmuch  as  it  dealt 
with  matters  within  the  competency  of  the  local  legislature  ; 
save  only  in  respect  to  the  seventh  clause,  which  professed  to 
deal  with  Presbyterian  colleges  at  Montreal  and  Quebec,  and 
with  certain  funds  which  are  outside  of  the  province  of  Onta- 
rio. Tlie.se  }»rovisions  ai)peared  to  be  ultrd  tuVcs,  and  inopera- 
tive ;  although  the  disallowance  of  the  whole  act  could  not 
be  advised,  on  this  account. 

IJy  a  further  minute  of  the  governor  in  council,  dated 
March  G,  187G,  uinm  a  report  from  the  minister  of  justice,  it 
was  decided  that,  while  the  petitions  aforesaid  and  the  jiajH'rs 
in  connection  therewith  migiit  suitably  bo  forwarded  to  tiie 
secretary  of  state  for  the  colonies,  as  requested  by  the  peti- 
tioners, yet  it  should  be  distinctly  observed  "  that,  by  the 
liritish  North  Anu-riea  act,  the  power  of  disallowance  [of 
provincial  acts]  does  not  reside  in  the  imperial  authorities  ; 
that  it  can  only  be  exercised  [by  the  governor-general  in 
council]  within  twelve  months;  that  that  time  has  elajjsed  ; 
and  that  there  is,  consequently,  no  power  to  interfere  with  tlu; 
operation  of  tlie  acts  in  (juestion,  so  far  as  they  are  within  the 
powers  of  the  local  legislature,  a  question  which  can  be  rai.sed 
in  the  courts  alone." 

On  Mar(;h  13,  187C,  the  governor-general  transmitted  tlie 
petitions  and  papers  aforesaid  to  the  colonial  secretary.     In 


Ontnrio 
K't^isliition 
oil  I'n .  ■ 
I  vtvrian 
qu«.atiu<.j. 


i'l 


-fl 


»  Ontario  Stats.  1874,  cc.  75,  76. 


I         it. 


t' 


I'  I    ! 


'1^ 


Ornnposo- 
cit'ty  in 
Now 
jinins- 
wick. 


356       PARLIAMENTARY  GOVERNMENT  IN  TIIF,  COLONIES. 

reply,  the  secretary  of  state  requested  that  the  menioi-ialists 
might  be  informed  that  lie  concurred  in  tlie  opinion  expressed 
by  tlie  governor-general  in  council  ;  that  tlie  acts  in  question 
are  now  in  lull  operation  ;  and  no  appeal  can  be  brought 
against  (honi,  unless  upon  the  plea  that  the  provincial  legisla- 
ture was  inci)nij)ctent  to  pass  them,  — in  which  case,  it  would 
be  open  to  test  that  question  in  a  court  of  law/ 

By  way  of  further  protest  against  these  Ontario  statutes,  a 
Presbyterian  minister,  on  May  i),  1870,  enclosed  to  tin;  secre- 
tary of  state  for  the  colonies  a  }>unip)det  he  had  written  to 
expose  the  injuries  inllicted  by  these  acts  u[)on  the  Prisbyte- 
rian  body  in  Canada  who  desired  to  retain  their  comiection 
with  the  Church  of  Scotland,  and  earnestly  l)esought  for  per- 
mission to  appeal  to  ln^r  Majt'sty's  Jirivy  council  for  redress. 
The  colonial  secretary  simply  transmitle<l  a  coi)y  of  this  letter 
to  the  governor-general  without  comment. ^^ 

The  conqjlainants  then  availed  themselves  of  the  suggestion 
of  the  dominion  government,  and  applied  to  the  Court  of  Chan- 
eery  in  Ontario  to  decide  upon  the  validity  of  the  provincial 
act  for  the  anion  of  the  Presbyterian  cliurehes.  Judgment  was 
rendered  by  the  court,  in  exact  accordance  with  the  opinion 
prononneod  upon  tiie  act  by  the  dominion  minister  of  justice. 
The  validity  of  the  act  itself  was  confirmed,  save  only  as  re- 
spects so  much  of  the  seventh  section  as  claimed  to  deal  with 
institutions  and  pro]»erfv  ontside  of  the  limits  o'  Ontario. 
This  poilioM  of  the  act  was  ueclnred  to  be  ultra  vires  :  but  it 
was  shown  that-,  by  legislation  in  the  province  of  (Quebec,  this 
deftct  could  be  remedied  ;  which  removed  all  grouiul  of  ob- 
jection to  the  legality  of  the  statute,  and  to  the  agreement 
between  the  churches,  based  thei'^upon.'^ 

In  July,  1S7H,  Isaac  Butt,  Ksjj.,  M.  P.,  forwarded  to  the 
secretary  of  state  for  the  colonies  (Sir  lU.  K.  Hicks-Peach), 
for  presentation  to  Ikm-  Majesty,  a  petition  frcuj  twenty-five 
thou;,uul  Irish-Canadian  C;i*holics,  residing  in  the  j)rovince  of 
^)ntj'.'o,  complaining  thiit  an  act  giving  special  privileges  t*o 
the  Orang«!  Society  in  ll  o  province  of  New  Ihunswi(;k  had 
received  from  the  lieutenat'.t-govt  rnor  of  that  provinc^e  the 
royal  assent,  and  praying  that  h -r  Majesty  would  be  pleased 


V  CiuiJida    .S(>ss.   rapera,    1877,  ^  Cnwaii    v.    Wrif,dit.     (Jranl's 

no.  8!),  i»p.  4;ir>-447.  Chancery  lli'[iort.s,  sol.  xxiil.  \y.  010. 

w  Ibid.  1..  \\S. 


;i 


COLONIES. 

nionioriiilists 

ion  expiossud 

ts  in  question 

'»   l)e  broncvht 

ini'iiil  looislu- 

<*ase,  it  would 

io  statutes,  a 
to  tli(!  secre- 
hI  wiitlcn  to 
the  Prcshyte- 
r  connection 
iij^^ht  for  juM-. 
1  for  redress, 
of  tliis  letter 

le  snggostion 
•iirt  of  Clian- 
lio  i)rovineial 
ml^nnentwas 
the  opinion 
er  of  justice. 
3  only  as  re- 
to  deal  with 
o"    Ontario. 
'irt-H :  l)ut  it 
(t^uebec,  this 
>und  of  ob- 
"  agreement 

I'ded  to  the 
cks-IJeaeli), 
twenty-five 
Iirovinee  of 
rivileges  fo 
iswick  had 
mvinoe  the 
be  i))eased 

lit,     (J  rani's 
xxiii.  p.  010. 


DOMINION    CONTROL  IN  MATTERS  OF  LEGISLATION.     357 

to  forbid  the  governor-general  of  the  dominion,  and  the  lieu- 
tenant-governors therein,  to  sanction  by  tlie  royal  assent  any 
enactment  giving  a  ciiarter  to  the  Orange  Society.  In  reply, 
Mr.  Butt  was  informed  that,  in  accordance  with  the  standing 
rules  of  the  colonial  service,  all  connuuuications  from  the  colo- 
nics should  be  transmitted  to  the  colonial  ollice  ihrough  the 
g(»vernor  t)f  the  colony  from  whence  they  proceed,  in  order 
ihat  they  may  be  dul}'  verified  and  reported  upon  by  the 
res[»onsil)lo  authorities;  that,  therefore,  the  petition  accompa- 
nying his  letter  would  at  once  be  forwarded  to  the  governor- 
general  of  Canada,  for  the  information  of  the  dominion  and 
provincial  authorities;  "but,  in  the  uwan  time,  I  am  to  inti- 
mate that  the  ([uestion  to  which  it  relates  would  a])pear,  under 
the  provisions  of  the  British  North  Ameiicu  act,  1S()T,  to  fall 
within  the  exclusive  })owers  of  the  provineial  legislatures  of 
the  dominion,  and  that  it  is  contrary  to  established  constitu- 
tional procetlure  for  her  Majesty's  government  to  interfere, 
unless  in  very  special  circumstances,  with  such  legislation  as 
is  within  the  comjietency  of  u  provincial  legislature." 

On  Aug.  2,  1878,  coj>ics  of  the  foregoing  correspondence 
were  transmitted  by  the  colonial  secretary  to  the  governor- 
general  of  Canada,  with  a  request  for  "  sueh  observations  as 
the  dominion  iiiid  provincial  authorities  may  think  proper  to 
make  in  the  matti'r."'  >'  But,  inasmuch  as  the  opinion  of  the 
dominion  minister  of  justice  had  been  already  expres.sed  ^  (in 
the  case  of  the  Orange  Soeiety  bill,  pa.ssed  by  the  Ontario 
legislature,  in  187-))  that  it  was  within  the  conq)etency  of  pro- 
vincial legislatures  to  decide  according  to  their  own  discretion 
whether  or  ikjI  they  would  confer  special  privileges  upon  such 

y  Ci)ininoiis  I'apc*r.><,  1878,  im.  Oraiitri!  Lod^je  of  Princo  Kdwanl 
.'{SO.  Till'  (il>iliioii  ciitcitaiiicd  liy  Island,  and  the  siilmrilinat''  lud'^'cs 
tlit^  imiH'rial  i,"ivt;niiiii'nt  uihim  (hti  in  coimi-ction  tlicn'witli."  Ili.s 
iilistracL  iiiii'stioii  of  tin-  prDprit'ly  (Jrace  fxini'sst's  Ids  "  dcfp  r»'i;rt't 
of  ^'laiitiii;;  .sp<'(;ial  priviU-Lfcs  ti»  tliat  tin!  It'y,islatur<>  should  have 
Oraii^ji'  .S(»fit!tit's,  ill  Hiitisli  Norlli  yivcii  its  sanction  to  a  class  of  in- 
.\niciica,  may  Ih-  infi'irt'(|  from  a  stitntions  wliii'ii  all  cxpcricnii'  him 
<l('s|iatcl»  from  tin;  coloidal  sccrc-  shown  to  he  calcidatcd  (if  not  ao- 
tary (the  l)uktM)f  Newcastle) to  Lii'u-  tually  intended)  to  ciuliittiT  rdi- 
Icnant-'. lovcinor  Dundas,  of  Prince  jjious  and  political  dill'eicnces.  and 
Kdsvard  Island,  dated  Sept.  *J1.  which  thus  must  Itc  dcti  inicntal  to 
lS(i;;,  intimating'  that  he  had  felt  it  the  best  iiiten'sts  of  any  oolony  ill 
impossible  to  ailvise  lur  Majesty  to  whidi  the^-  exist."  Coiinnons  Pa- 
assent  to  a  hill,  passed  Ity  the  Is-  p(us,  1864,  vol.  xl.  p.  7us. 
l.ind  legislature,  with  a  suspendinj^  '  Ontario  Scss.  Papers,  1st  Setts. 
clau.se,  "  to  incori)oiute  the  (jlraiid  1874,  no.  I'J. 


358     PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


it, 


ti  ,ii 


I    I 


Ornnpc 

sofii'tii'S 

in 


Jurisdio- 
tion  of  ilo- 
uiiiiioii 
ami  liical 
autlioi'i- 
ties. 


cassociations,  the  department  of  justice,  in  1879,  addressed  a 
Caiiiida.  circular  to  the  several  provincial  governments,  intimatinj^  tliat 
they  must  severally  determine  upon  their  own  responsihility 
liow  they  v/ould  deal  with  the  question  of  Orange  Society 
incorporations. 

The  foregoing  precedents  establish  the  principle  that 
no  interference  on  the  part  of  the  Crown  with  the 
action  of  provincial  authorities  in  Canada,  upon  any 
question  exclusively  within  their  legislative  competence, 
would  be  accounted  as  justifiable,  or  would  be  approved 
by  the  imperial  government,  unless  under  very  special 
and  extraordinary  circumstances,  which  could  scarcely 
be  anticipated  and  could  not  possibly  be  defined  before- 
hand. 

The  supervisory  control  of  the  Crown,  over  all  acts 
of  legislation  within  the  jurisdiction  of  the  constituted 
authorities  in  any  province  which  forms  a  part  of  the 
dominion  of  Canada,  has  been  delegated  to  and  is  now 
solely  exercised  by  the  governor-general  in  council  ; 
that  is  to  say,  by  the  governor-general  acting  under  the 
advice  of  ministers  responsible  to  the  dominion  House 
of  Commons.  It  is  to  this  tribunal  that  appeal  should 
be  made  for  the  disallowance  of  provincial  enactments. 

On  the  other  hand,  the  redress  of  grievances  arising 
out  of  the  operatioi  of  provincial  laws  can  only  ]je 
constitutionally  aflbrded  by  the  provincial  legishitures 
by  which  such  laws  have  been  enacted  ;  except  in  cases 
wherein  the  acts  complained  of  have  been  unlawfully 
passed,  or  arc  open  to  objection  upon  grounds  that 
would  justify  the  interference  of  the  governor-general 
in  council,  or  the  dominion  parliament,  with  the  same. 

It  is  true  that  every  British  subject  retains  the  right 
to  petition  the  queen  in  council  for  reparation  of  inju- 
ries, whether  they  be  resd  or  imaginary,  and  that  the  pre- 
rogative right  of  the  Crown  to  interpose  —  at  least  to 
the  extent  of  recounucndations  or  suggestions  to  any 


-^'- 


.¥«f?" 


\f"': 


I  I 


COLONIES. 

),  addressed  a 
itiniiitinjT  tl,at 
responsibility 
■uiige  Society 


rinciple  that 
n  with  tho 
upon  any 
Joni|H>tence, 
)o  .ipprovcMi 
vary  .special 
lid  scarcely 
lied  beibre- 

'or  all  acts 
constituted 
)urt  of  the 
and  is  now 
n   council  ; 
;  under  tlie 
lion  House 
)eal  sliould 
nactnients. 
ces  arisiuir 
n  only  be 
L'gislatures 
!pt  in  case's 
unlawfully 
•unds  that 
or-general 
the  same. 
!  the  right 
n  of  inju- 
it  the  pre- 
it  least  to 
•ns  to  any 


f(ir  ri'drcss 
of  ^rifv- 
anccs. 


DOMINION  CONTROL  IN  MATTERS  OF  LEGISLATION.      359 

subordinate  or  inferior  government  or  legislature  Appeals 
throughout  the  empire  —  remains  unimpaired,  notwith- 
standing the  concession  thereto  of  local  self-govern- 
ment. Moreover,  in  the  precedents  which  illustrate 
this  portion  of  our  inquiry,  we  observe  repeated  in- 
stances wherein  appeals  have  been  made,  as  well  by 
the  dominion  as  by  the  provincial  authorities  in  Candida, 
to  her  Majesty's  government  to  interfere  for  the  pro- 
motion of  harmony,  or  for  the  settlement  of  disputes, 
between  conflicting  jurisdictions.  But  in  all  such  cases 
the  principle  is  atiirmed,  that  no  interposition  to  the 
detriment,  in  any  degree,  of  the  estal)lished  principle  of 
self-government  in  matters  of  local  concern,  would  be 
permitted  or  approved,  whether  on  the  part  of  the  impe- 
rial or  dominion  governments,  in  their  several  and  ap- 
propriate spheres  of  action,  in  matters  within  the  ac- 
knowledged competency  of  either  tribunal.  This  broad 
principle  admits  of  but  one  exception ;  namely,  a  re»- 
served  right  of  interference  by  the  Crown  itself,  under 
exceptional  and  undefinable  circumstances  and  as  a 
last  resort,  or  at  the  formal  request  of  the  particular 
governments  concerned. 

The  following  precedent  is  in  point  in  this  connec- 
tion :  — 

In  1875,  Mr.  G.  II.  Ryland  petitioned  the  <:^overnor-pfeneral,  Ryland's 
coni[)liiinin[]f  of  a  bill  then  pending  in  the  Quebec  legislature,  ^^^^' 
and  that  afterwards  became  law;  which,  he  alleged,  was  to 
the  detriment  of  his  vested  rights  and  interests  in  resi>ect  to 
the  registrarship  of  Montreal,  which  had  been  conferred  upon 
liim,  by  the  imperial  government,  in  lieu  of  a  patent  office 
formerly  held  by  liim  under  the  Crown  in  Canada.  Certain 
inhabitants  of  Montreal  likewise  petitioned  the  governor-ge- 
neral for  the  disallowance  of  this  statute. 

These  petitions  were  referred  to  the  minister  of  justice, 
wlio  recojumended  that  the  provincial  legislature  of  Quebec 
should  be  invited  to  give  further  consideraticm  to  Mr.  Ry- 
land's just  claims,  before  the  question  of  disallowing  this  act 
should  be  entertained.     The  lieutenant-governor  of  Quebec, 


<     I 

I        u- 


i 


Mji'l 


Tm 


h  II 


i  ti 


'  I' 


Practice 
in  sujK'r- 
visinjf  j)ro- 
vliK'ial  io- 
gislutiuii. 


SCO       I'AULIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

in  reply  to  this  sng(:festion,  tleclarod  that  these  claims  liad 
l)een  thorouglily  examined  ;  and  that  it  beliooved  Mr.  llyland 
to  address  any  remonstrance  lie  desired  to  make  thereupon 
to  the  provincial  le<jjislature,  wliich  had  acted  within  its  con- 
stitutional limits  in  passing  this  law.  Consideration  for  its 
own  dignity  and  rights  would  not  jiermit  of  the  question  of 
repealing  the  act  being  entertained  by  that  body.  The  domi- 
nion government,  satisfied  with  these  assurances  of  the  will- 
ingness of  the  provincial  government  to  rentha'  justice  to  Mr. 
Kyland,  and  fully  recognizing  that  it  was  for  that  government 
to  decide  upon  the  merits  of  the  case,  reconnnended  that  the 
act  should  not  be  disallowed.  Upon  being  informed  of  this 
decision,  Mr.  llyland  protested  against  it,  as  overriding  and 
nullifying  the  authority  of  the  liritish  Crown  in  Canada.  But 
no  action  was  taken  upon  his  remonstrance.* 

Let  us  now  inquire  into  the  constitutioucal  practice, 
authoritatively  established  in  Canada,  to  regulate  the 
exercise  by  the  governor-general  in  coinicil  of  that 
supervision  and  control  over  provincijil  legislation  which 
has  been  assigned  to  the  dominion  government  by  the 
British  North  America  act. 

Upon  the  first  occasion  wherein  the  acts  passed  b}^ 
the  legislatures  of  the  Canadian  provinces  came  under 
the  review  of  the  central  government,  the  dumini(m 
minister  of  justice,  in  a  report  to  the  privy  council  for 
Canada,  di'^ed  June  8,  18G8,  submitted  the  following 
rules  for  adoption  on  this  subject :  — 

That  while,  under  the  present  constitution  of  Canada, 
the  general  government  will  be  called  upon  to  consider 
the  propi'iety  of  the  allowance  or  disallowance  of  pro- 
vincial acts  with  greater  frequency  than  her  Majesty's 
government  has  been  with  respect  to  colonial  enact- 
ments, it  is  "  of  importance  that  the  course  of  hx.'al 
legislation  should  be  interfered  with  as  little  as  possible, 
and  the  power  of  disallowance  exercised  with  great 
caution,  and  only  in  cases  where  the  law  and  the  ge- 

"  Ciiiiada  Sess.  Tapers,  1877,  no.  89,  pp.  25-1-2(39.  And  see  ibid.  1879, 
no.  105. 


OLONIES. 

claims  liml 
Mr.  Rylaiid 
e  thereupon 
tliin  its  con- 
ition  for  its 
!  qiu'stioii  of 

Die  doini- 
of  the  will- 
istice  to  Mr. 
(government 
led  that  the 
•nied  of  this 
!rridin<j  and 
mada.     But 


nl  practice, 
gulate  the 
sil  of  that 
ition  which 
put  by  the 

passed  by 
Hie  under 
dominion 
oiuK'il  for 
following 

)f  Canada, 
0  consider 
ce  of  pro- 
Majesty's 
ial  onact- 
3  of  local 
<  possible, 
ith  great 
d  tlie  ge- 

i  ibid.  1879, 


DOMINION  CONTROL  IN  MATTERS  OF  LEGISLATION.      361 

neral  interests  of  the  dominion  imperatively  demand 
it."  And  "  that  where  a  measure  is  considered  only 
partially  defective,  or  where  it  is  objectionable  as  being 
prejudicial  to  the  general  interests  of  the  dominion,  or 
as  clashing  with  its  legislation,  communication  should 
be  had  with  the  provincial  government  with  respect  to 
such  measure,  and  that  in  such  case  the  act  should  not 
be  disallowed,  if  the  general  interests  permit  such  a 
course,  imtil  the  locjil  government  has  an  o})portunity 
of  considering  and  discussing  the  objections  taken,  and 
the  local  legislature  has  also  an  opportunity  of  remedy- 
ing the  defects  found  to  exist." 

Two  possible  grounds  of  objection  to  provincial  en- 
actments are  noticed  in  the  preceding  report,  namely: 
(1.)  Where  exception  might  be  urged  to  "  the  law"  it- 
self, as  being  in  excess  of  the  constitutional  powers  of 
the  local  legislature,  or  at  variance  with  dominion 
legislation ;  (2.)  Where  it  might  appear  that  proposed 
enactments  were  contrary  to  the  policy  which,  in  the 
opinion  of  the  governor-genend  in  council,  ought  to 
prevail  throughout  the  dominion,  in  view  of  the  ge- 
neral interests  thereof. 

In  order  to  facilitate  the  determination  of  the  domi- 
nion executive  upon  such  questions,  it  was  advised  that, 
upon  the  receipt  by  the  governor-general  of  the  acts 
passed  by  the  legislature  in  any  of  the  dominion  pro- 
vinces, they  should  be  referred  to  the  minister  of  justice, 
and  that  it  should  be  his  duty,  as  speedily  as  possible, 
to  report  in  regard  to  such  acts  as  may  appear  to  him 
to  be  unobjectionable.  If  the  governor-general  in 
council  concurred  therein,  their  approval  of  these  en- 
tactments  should  be  forthwith  communicated  to  the 
provincial  government. 

But  it  should  be  the  duty  of  the  minister  of  justice 
to  report,  separately  and  ni  detail,  upon  any  acts  which 
he  may  consider  open  to  objection :  — 


Report 
tlirrc'diiliy 
iiiiiiistiT 
of  j  ustico. 


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Instruc- 
tions re- 
quired by 
lieu- 
tenant-go- 
vernors. 


362     PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

(1.)  As  being  altogether  illegal  or  unconstitutional. 

(2.)  As  being  illegal  or  unconstitutional  only  in  part. 

(3.)  In  cases  of  concurrent  jurisdiction,  as  clashing 
with  the  legislation  of  the  dominion  parliament. 

(4.)  As  affecting  the  interests  of  the  dominion  gene- 
rally. 

This  report  from  the  minister  of  justice  was  approved 
by  the  governor-general  in  council  on  June  9,  1868, 
and  was  subsequently  transmitted  by  a  circular  de- 
spatch from  the  dominion  secretary  of  state  to  the  lieu- 
tenant-governors of  the  several  provinces.^ 

In  forwarding  these  regulations  to  the  lieutenant- 
governors,  through  the  constitutional  channel  of  the 
secretary  of  state  for  the  dominion,  it  is  obvious  that 
instructions  should  likewise  have  been  sent  to  these 
functionaries,  for  their  general  guidance  in  assenting, 
in  her  Majesty's  name,  to  bills  passed  by  the  legisla- 
tures of  their  respective  provinces,  and  in  regard  to 
their  discretion  in  withholding  the  loyal  assent  to  bills 
or  in  reserving  them  for  the  signification  of  the  plea- 
sure of  the  governor-general,  pursuant  to  the  authority 
which  is  vested  in  provincial  governors  by  the  British 
North  America  act.*^  But,  in  point  of  fact,  hitherto  the 
lieutenant-governors  (with  the  exception  of  the  lieu- 
tenant-governor of  the  new  province  of  Manitoba)  have 
been  left  entirely  without  instructions  in  the  fulfilment 
of  these  important  functions.  The  commissions  issued 
to  the  lieutenant-governors  expressly  refer  to  instruc- 
tions as  accompanying  the  same  or  as  to  be  given,  from 
time  to  time,  "  under  the  sign-manual  of  the  governor- 
general,"  or  by  order  of  the  privy  council  of  Canada ;  ^ 


'»  Canada  Sess.  Papers,  1869,  no.  of  the  reservation  of  bills  for  the 

18.  consideration  of  the  governor-geiie- 

"  See  a)}/f ,  p.  329.     For  examples  ral,  see  ;)».s7,  p.  394. 

of  the  witliholdiiig  of  the  royal  as-  <•  See  a  form  of  commission  in 

sent   to    bills    by  lieutenant-gover-  Canada    Senate    Journals,    1878, 

liors  of  the  Canailiau  provinces,  and  p.  175. 


3L0NIES. 

stitutional. 
Diily  in  part, 
as  clashing 
aent. 
linion  gene- 

as  approved 

ine  9,  1868, 

circular  de- 

to  the  lieu- 

lieutenant- 
nnel  of  the 
)bvious  that 
;nt  to  these 
n  assenting, 
the  legisla- 
n  regard  to 
sent  to  bills 
3f  the  plea- 
le  authority 

the  British 
hitherto  the 
of  the  lieu- 
litoba)  have 
e  fulfilment 
isions  issued 

to  instruc- 
given,  from 
e  governor- 
f  Canada ;  ^ 

f  bills  for  t^.e 
govenior-geiie- 

commission  iii 
unuils,    1878, 


i 


DOMINION  CONTROL  IN  MATTERS  OF  LEGISLATION.      363 

yet  no  instructions,  of  either  an  affirmative  or  a  nega- 
tive kind,  have  thus  far  been  sent  from  the  donihiion 
(Tovernment  to  these  officers."  Nevertheless,  the  lieu- 
tenant-governors,  as  dominion  officers,  have  in  repeated 
instances  very  properly  assumed  the  responsibility  of 
reserving,  for  the  consideration  of  the  governor-general 
in  council,  bills  which  appeared  to  them  to  contain 
doubtful  or  objectionable  provisions. 

The  power  of  disallowance   of  provincial  acts  has  Disaiiow- 
been  freely  exercised  by  the  governor-general  in  coun-  provincial 
cil,  from  the  confederation   of  the    provinces  to  the  statutes. 
present  time.     For  the  most  part,  this  power  has  been 
resorted  to  only  in  cases  wherein  the  provincial  legis- 
latures have  passed  acts  which  were  unconstitutional, 
or  beyond  their  legal  competency  to  enact.     But  it  has 
been  sometimes  invoked  in  respect  to  acts  which  con- 
tained provisions  that  were  deemed  to  be  contrary  to 
sound  principles  of  legislation,  and  therefore  likely  to 
prove  injurious  to  the  interests  or  welfare  of  the  do- 
minion.' 

On  the  other  hand,  the  dominion  minister  of  jus- 
tice has,  in  repeated  instances,  declined  to  advise  the 
positive  disallowance  of  provincial  acts  although  they 
contained  provisions  that  he  regarded  as  ultra  vires. 
Instead  of  a  resort  to  the  exercise  of  this  statutory 
j)ower,  he  has  sometimes  recommended  confirmatory  le- 
gislation by  the  dominion  parliament ;  or  he  has  merely 
called  attention  to  the  objectionable  clauses,  with  a  view 
to  their  being  amended  by  the  local  legislature ;  or  he 
has  proposed  to  leave  it  to  the  courts  of  law  to  decide 
upon  the  validity  of  the  particular  statute,  in  the  event 


®  See  Attorney- Goneral  Mowat's  in  Canada  Soss.  Papors,  1877,  no. 

monidrandiun   of   Doo.   IG,  187;5,  in  8!),  ji.  Mi);  andsi^o //^/V.  p.  17'J. 

Ontario    Scss.    Papers,    1st    S(>ss.,  *  See  Canada  Scss.  Tapers,  1877, 

1874,  no.  19;  Li('>itenaiit-(J()vernor  no.  SU,  jxissim.    And  sec  post,  ]). 'ill. 
Morris's  despatch  of  Feb.  12,  1870, 


I VI 


I    I 


i-.a^ 


J! 


'Ml 


H; 


Iw 

^  ill' 

;^]H[ 

; 
1 

i 

^ff 

i 

I 

-       1 

S  w'  / 

fftlH  ' 

IflHl  ' 

Iffif 

1 

1  , 


Lietite- 
nant-go- 
vornor 
calls  at- 
tention to 
an  act. 


364       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

of  any  question  arising  thereupon  for  judicial  deter- 
mination.^' 

It  has  occasionally  happened,  in  the  case  of  a  provin- 
cial bill,  reserved  for  the  consideration  of  the  governor- 
general,  that  simply  "no  action  was  taken  thereon." 
This  course  leaves  the  local  government  free  to  re-in- 
troduce the  measure,  at  their  discretion,  with  any  suit- 
able amendments.'' 

In  1876,  Lieutenant-Governor  Morris,  of  the  province  of 
Manitoba,  refrained  from  reserving  an  act  to  abolish  the 
Legislative  Council  of  that  province,  because  the  constitu- 
tional competency  of  the  legishiture  to  pass  it  was  undoubted. 
Nevertlieless,  in  a  despatch  to  the  dominion  secretary  of  state, 
he  called  attention  to  the  questionable  policy  of  the  measure, 
and  to  considerations  which  seemed  to  affect  its  legality. 
The  dominion  government,  however,  decided  to  leave  the  act 
to  its  operation ;  being  of  opinion  that,  even  if  it  were  in- 
valid, "  it  would  be  contrary  to  the  spirit  in  which  the  power 
of  disallowance  has  been  exercised  to  interfere  with  the 
operation  of  the  act."  It  would  be  for  the  legislature  of 
Manitoba,  if  necessary,  to  move  the  proper  authorities  for 
legislation  to  remove  any  such  doubts.* 


B  See  post,  p.  375.  For  an  ex- 
ample of  the  course  adopted  l)y  a 
provincial  government  to  bring  par- 
ticular legislation  into  harmony 
witli  the  limitatit)ns  impose(>  by  the 
British  Noi'tli  America  act,  see  Nova 
Scotia  Stats.  1877,  c.  4. 

''  Canada  Sess.  Papers,  1877, 
no.  89,  p.  I'A. 

'  I/wl.  pp.  11.S-L5L  S^'e  also 
the  case  of  the  Goodhue  estate  act 
(;J1  Vict.  c. !)!)),  to  confirm  and  vali- 
date a  settlement  of  property  under 
a  will,  but  at  variance  with  the  inten- 
tions of  the  testator.  This  act  was 
passed  by  the  Ontario  legislature  in 
1871,  and  assented  to  by  the  lieute- 
nant-governor: although  he  after- 
wards forwarded  to  the  governor- 
general  a  petition  from  parties  con- 
cerned against  the  act,  with  a 
statenuMit  that  he  considered  the 
principle  iiivolvv^d  iu  this  act  to  be 


very  objectionable,  and  as  forming  a 
dangerous  precedent;  but  in  the  ab- 
sence of  instructions,  and  upon  the 
advice  of  his  ministers,  he  had  con- 
cluded to  assent  to  it.  The  domi- 
nion privy  council,  however,  re- 
commended that  the  act  be  left  to 
its  operation,  as  it  w\"is  within  the 
competence  of  the  provincial  legis- 
lature. (//>h/.  i)p.  18()-1!)1.)  After 
being  the  occasion  of  much  litiga- 
tion, this  act  —  tliough  of  doubtful 
expediency,  and  an  unusual  if  not 
unprecedented  interference  with  pri- 
vate rights  —  was,  nevertheless,  de- 
clared by  the  Ontario  Court  of  Error 
and  Ajjpeal,  in  187;3,  actually  to  be 
within  the  scope  of  provincial  le- 
gislative authority,  and  yet  to  be 
virtiuiHy  inoperative  on  account 
of  certain  defects  and  omissions 
therein.  Grant,  Chancery  Ilep.  vol. 
xix.  p.  300. 


!  I 


COLONIES. 

adicial  deter- 

3  of  a  provin- 
he  governor- 
en  thereon." 
free  to  re-in- 
ith  any  suit- 

e  province  of 
o  abolish  the 

the  coiistitu- 
as  undoubted, 
etary  of  state, 

the  measure, 
;  its  legahty. 

leave  the  act 
if  it  were  in- 
ch the  power 
ere  with  the 
legislature  of 
ithorities  for 


nrl  as  forminpf  a 
but  in  the  ab- 
,  and  npon  the 
I's,  he  had  con- 
it.     The  donii- 
however,    re- 
act be  left  to 
as  within  the 
'ovincial  legis- 
50-1!)  1.)    After 
oi  much  litiga- 
gh  of  doubtful 
unusual  if  not 
rence  with  pri- 
3vertheless,  de- 
Court  of  Error 
actually  to  be 
provincial  le- 
md  yet   to  be 
I    on    account 
md    omissiona 
icery  Rep.  vol. 


DOMINION  CONTROL  IN  MATTERS  OF  LEGISLATION.      365 

In  the  session  of  1868-69,  the  Ontario  legislature 
passed  an  act  to  define  their  powers  and  privileges, 
which  sought  to  confer  upon  the  Legislative  Assembly 
and  its  members  the  same  privileges  as  those  enjoyed 
by  the  House  of  Commons  of  the  dominion.  The  com- 
petency of  the  provincial  legislature  to  pass  this  act 
was  doubted ;  and,  upon  the  recommendation  of  the 
dominion  minister  of  justice,  the  question  was  referred 
to  the  consideration  of  the  law  officers  of  the  Crown 
in  England.  They  gave  it  as  their  opinion  that,  in 
view  of  sections  92-95  of  the  British  North  America 
act,  this  enactment  was  ultra  vires.  Whereupon,  not- 
withstanding that  the  attorney-general  of  Ontario  pro- 
tested against  this  conclusion  in  an  able  memorandum, 
the  statute  was  disallowed  by  the  governor-general  in 
council.''  In  1876,  another  act  on  the  same  subject  Avas 
passed  by  the  Ontario  legislature  (the  39  Vict.  c.  9), 
which  conferred  certain  specified  powers  and  privi- 
leges only  upon  the  Legislative  Assembly  and  upon  its 
members.  This  act  was  also  objected  to  by  the  domi- 
nion minister  of  justice,  upon  the  assumption  that  it 
contained  several  provisions  that  were  ultra  vires.  But 
inasmuch  as  a  similar  act,  passed  by  the  Quebec  legis-  Doubtful 
lature  in  1870,  had  been  left  to  its  operation,  he  ad-  cmfsiSera^ 
vised  that  the  same  course  should  be  pursued  in  regard  *'""  ^^  *''® 
to  this  statute,  leaving  it  to  the  courts  of  law  to  decide 
upon  any  question  that  might  hereafter  be  raised  that 
should  involve  the  consideration  of  the  legality  of  this 
measure.*" 

With  a  view  to  impart  to  all  the  provincial  govern- 
ments the  benefit    of  any  decisions  agreed  upon  by 


■I  ■  11 


courts. 


i  Canada  Sess.  Papers,  1877,  no. 
89,  pp.  202-211,  221. 

k  Ibid.  pp.  108-114,  325.  In 
1878,  the  constitutional  question  as 
to  the  competency  of  the  provincial 
legislatures  bo  pass  acts  of  this  de- 
scription came  under  the  review  of 


the  Supreme  Court  of  the  dominion. 
The  judgment  of  this  court  was  in 
favour  of  the  legislatures,  and  ad- 
verse to  the  opinion  entertained  by 
the  dominion  minister  of  justice. 
See/)0A7,  p.  4G8. 


..wflBjBspnai 


Mb 


1 


f: 


I 


!:i 


I  ; 


n 


Notice  to 
local  go- 

VLTllIUCntS 

of  domi- 
nion de- 
cisions. 


Cautions 
excrcif^e  of 
right  of 
disallow- 
ance. 


366 


PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


the  governor-general  in  council,  in  respect  to  the 
legality  or  otherwise  of  acts  passed  by  any  provincial 
legislature,  and  to  afford  to  the  newer  provinces  of 
the  dominion  the  advantage  of  the  legislation  and 
experience  of  the  older  provinces,  Lieutenant-Governor 
Morris,  of  Manitoba,  advised  in  a  despatch  to  the  secre- 
tary of  state  for  the  dominion,  dated  Oct.  10,  1874, 
that  "  in  the  event  of  the  disallowance  of  an  act  of  a 
local  legislature,  the  fact  of  the  disallowance,  together 
with  its  cause,  should,  in  addition  to  the  notice  in  the 
Canada  gazette,  be  communicated  to  the  other  local 
governments."  Governor  Morris  was  informed  that  his 
suggestion  was  regarded  as  one  that  might  well  be 
adopted  in  future.'  But  as  yet  it  does  not  seem  to  have 
been  carried  out. 

As  a  rule,  the  dominion  government  refrains  from 
any  interference  with  provincial  legislation,  so  long  as 
the  acts  passed  are  clearly  within  the  competency  of 
the  local  authorities  ;  unless  they  contain  provisions 
which  are  open  to  objection  upon  general  grounds  of 
public  policy,  as  being  calculated  to  affect  injuriously 
the  interests  of  the  dominion,  or  of  any  particular 
portion  thereof.  The  reason  of  this  cautious  forbear- 
ance is  not  far  to  seek. 

Acknowledging  the  constitutional  supremacy  of  the 
Crown,  and  the  indisputable  right  of  the  supreme 
authority  in  every  state,  to  supervise  and  control  all 
legislation  therein,  according  to  its  discretion  (a  prin- 
ciple of  much  importance  in  this  connection,  to  be 
presently  adverted  to) ;  bearing  in  mind  the  fiict  that, 
under  the  British  North  America  act,  the  governor-gene- 
ral in  council  is  substituted  for  the  queen  in  council, 
OS  the  supreme  authority  entitled  to  ratify  or  disallow^ 
provincial  acts,  —  considerations  which  would  naturally 


*  Canada  Sess.  Papers,  1877,  no.  89,  p.  43. 


«:  COLONIES. 

pect  to  the 
ly  provincial 
provinces  of 
;islation  and 
xnt-Governor 
to  the  secre- 
►ct.  10,  1874, 
'  an  act  of  a 
nee,  together 
notice  in  the 
}  other  local 
rmecl  that  his 
light  well  be 
seem  to  have 

refrains  from 
n,  so  long  as 
ompetency  of 
in  provisions 
al  grounds  of 

:  injuriously 
ny  particular 

ious  forbear- 

macy  of  the 
the  supreme 
id  control  all 
etion  (a  prin- 
ction,  to  be 
the  fiict  that, 
overnor-gene- 
n  in  council, 
y  or  disallow 
)uld  naturally 


DOMINION  CONTROL  IN  MATTERS  OF  LEGISLATION.      367 

suffice  to  prevent  the  adoption  of  any  stringent  or 
inflexible  rules  for  the  exercise  of  this  sovereign  power 
on  behalf  of  the  Crown,  in  respect  to  acts  passed  by  the 
provincial  legislatures,  —  we  must,  nevertheless,  admit, 
that  the  rights  of  local  self-government  heretofore  con- 
ceded to  the  several  provinces  of  the  dominion  are  not, 
in  any  wise,  impaired  by  their  having  entered  into  a 
federal  compact,  and  that  no  infringement  upon  those 
rights  which  would  be  at  variance  with  constitutional 
usage,  or  with  the  liberty  of  action  previously  enjoyed 
by  the  provinces  when  under  the  direct  control  of  the 
imperial  government,  would  be  justifiable  on  the  part 
of  the  dominion  executive. 

We  have  already  seen  that,  in  the  colonies  entrusted 
with  "  responsible  government,"  the  royal  veto  upon 
legislation  is  now  exercised  only  within  certain  pre- 
scribed or  easily  ascertained  limits ;  "*  and  that  no  mere 
calculations  of  political  expediency,  or  difierence  of 
opinion  in  regard  to  the  policy  of  a  colonial  enactment, 
would  suffice  to  induce  the  Crown  to  veto  the  same, 
provided  only  it  was  within  the  legislative  competency 
of  the  colony,  and  did  not  injuriously  affect  the  inter- 
ests of  other  parts  of  the  empire. 

A  similar  restraint  has  been  observed  by  the  domi- 
nion government  in  its  control  over  provincial  legisla- 
tion delegated  to  them  by  the  Imperial  Parliament. 

There  is,  moreover,  in  the  case  of  the  Canadian  pro- 
vinces, an  additional  reason  for  the  cautious  and  sparing 
exercise  of  a  veto,  by  the  governor-general  in  council, 
upon  acts  passed  by  the  provincial  legislatures ;  namely, 
that  under  their  several  constitutions,  and  pursuant  to 
the  ninety-second  section  of  the  British  North  America 
act,  these  local  legislatures  possess  powers  of  legislation 
as  complete  and  absolute  within  their  exclusive  jurisdic- 


•■llil 

''    it'  'I 


^ti 


i:i 


i-  i] 


'  iii, 


Absolute 
rights  of 
local  legis- 
latures. 


'^1 


43. 


™  See  ante,  p.  128. 


368     i'ArvLIAMEXrARY  GOVERNMENT  IN  THE  COLONIES. 


Judicial 
oi)inions 
thereon. 


tion,  as  those  enjoyed  by  tlie  dominion  parliament,  or 
even  by  the  parhament  of  the  mother  country  in  their 
respective  spheres.  This  argument  was  urged  with 
much  acumen  by  the  learned  judges  of  the  Court  of 
Appeal  in  Ontario  in  1873,  in  adjudicating  upon  the 
constitutionality  of  a  certain  act  of  the  local  legislature, 
"  to  confirm  the  deed  for  the  distribution  of  the  estate 
of  the  late  G.J.  Goodhue."" 

Thus,  it  was  observed  by  Chief  Justice  Draper : 
"  Conceding  to  the  fullest  extent  that  the  powers  of 
the  legislature  of  Ontario  are  defined  and  limited  by 
the  British  North  America  act  of  1867, 1  conceive  that, 
within  those  limitations,  acts  passed  in  the  mode  de- 
scribed by  that  statute  are,  as  to  the  courts  and  people  of 
this  province,  supreme."  And  by  Chancellor  Spragge  : 
"  The  true  principle  I  take  shortly  to  be,  that,  under 
the  confederation  act,  there  has  been  a  federal  not  a 
legislative  unio:  ;  that  to  the  provincial  legislature  is 
committed  the  power  to  legislate  upon  a  range  of  sub- 
jects which  is  indeed  limited,  but  that,  within  the  limits 
prescribed,  the  right  of  legislation  is  absolute."  To  the 
same  effect,  Vice-Chancellor  Strong  remarked,  as  to  the 
power  to  pass  private  acts  of  parliament  affecting  pro- 
perty, "that  the  legislature  have  that  powir,  in  all  cases 
where  the  property  and  rights  sought  to  be  affected 
are  "  in  the  province,"  to  the  same  unlimited  ex+ent 
that  the  Imperial  Parliament  have  in  the  United  King- 
dom, I  have  not  the  slightest  doubt." " 


"  Ontario  Stats.  34  Vict.  c.  99. 

"  In  re  Goodhue,  Grant,  Chan- 
cery Rep.  vol.  xix.  pp.  JJ86,  418, 
452.  These  judicial  opinions  were 
cited,  and  their  authority  confirmed 
by  Vice-chancellor  Blake,  in  1876, 
in  the  case  of  Cowaii  v.  Wright, 
ibid.  vol.  xxiii.  p.  623.  And  the 
same  principle  was  asserted  by  Mr. 
Justice  Burton,  in  the  Ontario 
Court  of  Appeal,  in  1879,  in  the  case 


of  Parsons  v.  Citizens'  Insurance 
Company.  Ont.  App.  Rep.  vol.  iv. 
p.  100.  See  also  Mr.  Justice 
Fisher's  able  judgment  in  the  su- 
preme court  of  New  Brunswick,  in 
1879,  in  Steadmau  t;.  Robertson; 
Pugsley  Rep.  vol.  ii.  p.  598.  To 
the  same  eifect,  Attorney-General 
Mowat  observed  (in  Severn  c.  The 
Queen,  Canada  Supreme  Court 
Rep.  vol.  ii.  p.  81),  "  where  there  is 


hi'i 


1 


COLONIES. 

arliament,  or 
ntry  in  their 
urged  with 
the  Court  of 
ng  upon  the 
al  legislature, 
of  the  estate 

tice    Draper : 
he  powers  of 
id  limited  by 
conceive  thai 
:he  mode  de- 
and  people  of 
illor  Spragge  : 
e,  that,  under 
federal  not  a 
legislature  is 
range  of  sub- 
liin  the  limits 
lute."    To  the 
:"ked,  as  to  the 
affecting  pro- 
'  -^r,  in  all  cases 
o  be  affected 
imited  extent 
United  King- 


itizens'    Insurance 

App.  Rep.  vol.  iv. 

also    Mr.    Justice 

dgment  in  the  su- 

)iew  Brunswick,  in 

nan  v.  Robertson; 

.  ii.   p.   598.      To 

Attorney-General 

(in  Severn  v.  The 

Supreme    Court 

1),  "where  there  is 


Crown. 


DOMINION  CONTROL  IN  MATTERS  OF  LEGISLATION.      369 

But  while  we  acknowledge  the  force  of  these  conclu-  inherent 
sions,  and  their  applicability  to  restrain  the  exercise  of  !'o,7tro" 
the  veto  power  over  provincial  legislation,  in  respect  to  '"  "'^' 
bills  within  the  exclusive  legislative  authority  of  the 
local  legislatures,  there  still  remains  in  the  Crown,  by 
virtue  of  its  authority  as  an  essential  component  part  of 
every  legislative  body  in  the  empire,  a  reserved  prero- 
gative right  of  disallowance,  which  is  capable  of  being 
exercised  on  all  fitting  occasions.  The  method  of  giv- 
ing expression  to  this  inherent  and  inalienable  prero- 
gative may  vary,  according  to  circumstances,  and  in 
conformity  with  the  requirements  of  statute  law.  It 
may  be  exercised,  as  in  England  by  the  sovereign  in 
person,  acting  in  council ;  or,  as  in  Canada,  by  the  re- 
presentative of  the  sovereign,  in  her  name  and  behalf. 
But,  in  either  case,  the  authority  is  identical,  and  it 
emanates  from  the  same  source ;  to  w^it,  the  prerogative 
of  the  Crown.  For  the  sovereign,  as  the  head  of  the 
body-politic,  is  a  constituent  part  of  Parliament ;  nay 
more,  it  is  in  the  sovereign,  and  not  in  the  body  which 
the  law  assigns  to  advise  and  assist  him,  that  all  legis- 
lative authority  is  vested  by  the  British  Constitution, 
as  the  enacting  clause  of  every  act  of  Parliament  de- 
clares.^ 

The  occasions  when  this  prerogative  may  be  suitably 
invoked  cannot  of  course  be  anticipated.  It  is  not 
therefore  possible  to  formulate  a  definition  which  should 
state  explicitly  the  reasons  that  would  justify  the  inter- 
position by  the  Crown  of  a  veto  upon  a  colonial  enact- 
ment. Suffice  it  to  say,  in  answer  to  the  objection  that 
a  power  so  great  and  indeterminate  might  be  injuriously 
or  unreasonably  exercised,  that  it  is  subject  to  the  same 

jurisdiction,  the  will  of  the  legis-  Book,  of  23  Edward  IIT.,  "  the  king 

hvtiU'e   is  omnipotent,  according  to  makes  the  laws,  by  the  assent  of 

British  theory,  and  knows  no  supe-  the  peers,   &c.,  and  not  the  peers 

rior  law."     And  see  ihe  Queen  v.  and  the  commune."    Stubbs,  Const. 

Burah,  3  App.  Cas.  904.  Hist.  vol.  ii.  ').  572.     See  Stephen's 

p  lu  the  words  of  the  old  Year  Blackstoue,  Dook  iv.  c.  i. 

84 


I 


A 


J,  *5tI?P9f5^^^^^^^2H^' 


itlfmmmmm 


«'!'  I 


t 


Judicial 
opinions 
on  tliis 
subject. 


370       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

restraints  that  are  impcsecl  upon  all  other  actions  of  the 
sovereign  in  a  constitutional  monarchy :  it  can  only  be 
exercised  upon  the  advice,  and  through  the  instrumen- 
tality, of  responsible  ministers.  With  this  limitation, 
the  royal  veto  upon  colonial  legislation  remains  as  a  re- 
served power  ordinarily  in  abeyance,  but  capable  of  be- 
ing resorted  to,  whenever,  in  the  judgment  of  the  Crown 
and  its  responsible  advisers,  the  welfare  of  the  particu- 
lar colony  or  province,  or  the  interests  of  the  nation  at 
large,  may  demand  the  interposition  of  the  supreme  au- 
thority.'' 

Applying  this  doctrine  to  the  control  exercisable  by 
the  governor-general  in  council  over  provincial  legisla- 
tion, the  judges  of  the  Supreme  Court  of  Canada  have 
pertinently  observed  that  there  is  "  no  doubt "  of  the 
prerogative  right  of  the  Crown  to  veto  any  provincial 
act,  and  that  it  "  could  even  be  applied  to  a  law  over 
which  the  provincial  legislature  had  complete  jurisdic- 
tion. But  it  is  precisely  on  account  of  its  extraordinary 
and  exceptional  character  that  the  exercise  of  this  pre- 
rogative will  always  be  a  delicate  matter.  It  will 
always  be  very  difficult  for  the  federal  government  to 
substitute  its  opinion  instead  of  that  of  the  Legislati\e 
Assemblies,  in  regard  to  matters  within  their  province, 
without  exposing  themselves  to  be  reproached  with 
threatening  the  independence  of  the  provinces ; "  not 
to  dwell  upon  the  possible  consequences  of  a  province 
choosing  "  to  re-enact  a  law  which  had  been  disallowed." 
Moreover,  the  assertion  of  this  prerogative  right  by  the 
dominion  government  "  will  always  be  considered  a 
harsh  exercise  of  power,  unless  in  cases  of  great  and 
manifest  necessity,  or  where  the  act  is  so  clearly  beyond 
the  powers  of  the  local  legislature  that  the  propriety  of 
interfering  would  at  once  be  recognized."  *" 

Q  See  ante,  p.  128.  Canada  Sup.  Court  Rep.   vol.    ii. 

'  C.   J.    Richards,    and    Judge    pp.  96,  131. 
Fournier,  in  Severn  v.  The  Queen, 


COLONIES. 


*t  Rep.   vol.    ii. 


DOMINION  CONTROL  IN  MATTERS  OF  LEGISLATION.     371 

The  precise  extent  wlierein  the  governor-general  in  rrnoticni 
council  —  in  fulfilment  of  the  powers  conferred  upon  liol,',iilha 
him  by  the  British  North  America  act,  in  the  supervi-  ^^^"""■•'i 

.       .  .  .  .  ovir  jiro- 

sion  of  provincial  legislation  —  has  disallowed  acts  vIik  lui 
passed  in  the  provinces,  because  they  were  at  variance  tiui^ 
with  rules  hereinbefore  recited,  and  which  were  esta- 
blished to  define  and  regulate  the  powers  assigned  to 
the  provincial  legislatures  by  tluit  statute,  will  appear 
on  reference  to  the  subjoined  memorandum,  for  which  I 
am  indebted  to  Mr.  Z.  A.  Lash,  the  deputy  of  the  mi- 
nister of  justice  of  the  dominion  :  — 

The  power  of  disallowance  of  provincial  statutes  is  al- 
waj's  exercised  with  caution.  The  dominion  government 
has,  since  confederation,  exercised  this  power  in  very  few  in- 
stances, compared  to  the  large  number  of  acts  which,  since 
confederation,  have  been  passed  by  the  several  provincial 
legislatures. 

The  numbers  of  acts  passed  by  the  provinces,  from  con- 
federation, in  186,,  —  or  from  the  entry  of  particular  pro- 
vinces into  the  federal  union,  —  to  the  year  1878,  inclusive, 
are  as  follows :  — 

Ontario    ..........  1,000 

Quebec 812 

New  Brunswick     .          1,005 

Nova  Scotia  ....          ....  1,081 

Manitoba  (from  1870            ....  304 

British  Columbia  (from  .      1)  ...  209 

Prince  Edward  Island  (from  1873)     .  195 

Total 4,606 

And  the  total  numbers  disallowed,  within  the  same  period, 
are  as  follows :  — 

Ontario 3 

Quebec 2 

New  Brunswick none. 

Nova  Scotia 4 

Manitoba 6 

British  Columbia 12 

Prince  Edward  Island none. 

Total 27 


■  ■  n 


rn/mm 


il  I 


I 


!   ( 


fumil 


'# 


|l! 


372     PARLTAMEXTARY  GOVERNMENT  IN  THE  COLONIES. 

This  is  a  very  smiill  percentage,  and  sliows  how  reluc- 
tantly the  power  is  exercised.  It  by  no  means  follows, 
however,  that  only  twenty-seven  acts  liave  been  thought 
objectionable  by  the  dominion  authorities  during  the  past  ten 
years.  The  practice  has  been,  before  taking  the  extreme 
course  of  disallowing  an  act,  to  call  the  attention  of  the  pro- 
vincial government  to  its  objectionable  features,  and  give 
them  an  opportunity  of  promoting  its  repeal  or  amendment. 
Occasionally,  however,  from  the  very  nature  of  the  act  itself, 
or  from  the  shortness  of  the  time  for  disallowance,  it  has  been 
thought  necessary  to  disallow  it,  without  waiting  for  its  re- 
peal. During  the  last  ten  years,  many  provincial  acts  have 
been  objected  to,  and  have  accordingly,  within  the  time  for 
disallowance,  either  l)een  wholly  repealed  or  else  amended  so 
as  to  remove  the  objections. 

If  an  act  be,  in  its  main  features,  clearly  beyond  the  pow- 
ers of  the  provincial  legislature,  it  would  seem  to  be  the  duty 
of  the  dominion  authorities  to  disallow  it ;  unless,  within  the 
limited  time,  it  be  repealed  or  so  amended  as  to  remove  the 
objectionable  features. 

It  is  often  very  doubtful  whether  an  act  be  within  or  be- 
yond the  competence  of  a  provincial  legislature ;  and  very 
often  acts  which,  in  their  main  provisions,  are  clearly  valid, 
contain  some  provision  beyond  the  competence  of  the  legis- 
lature. Moreover,  in  the  character  of  the  enactments  which 
may  be  beyond  the  powers  of  the  local  body,  there  is  often  a 
vast  difference.  Though  all  such  provisions  are  alike  void, 
some  of  them  may,  without  inconvenience,  be  passed  by  with- 
out interference  by  the  dominion  government ;  while,  to  take 
the  same  course  as  to  others,  might  produce  serious  embarrass- 
ment and  confusion.  It  is,  therefore,  in  each  particular  case, 
a  question  to  be  decided,  whether  an  act,  though  containing 
some  void  provisions,  should  be  disallowed  or  left  to  its 
operation.' 

In  deciding  as  to  the  disallowance  of  an  act,  the  govern- 
ment is  not  confined  to  considering  its  validity  in  a  legal 
point  of  view.  The  power  of  disallowance  is  a  general  one  ; 
and,  in  arriving  at  a  conclusion  as  to  its  exercise,  the  govern- 


■  See  Report  of  the  niinister  of  justice  (Mr.  Blake),  of  Dec.  22,  1875, 
in  Canada  Sess.  Papers,  1877,  no.  89,  p.  450. 


'111 


COLONIES. 


or  left  to   its 


of  Dec.  22,  1875, 


fuse  to  act 

UllIK'Cl'S- 


DO.MIMON  CONTROL  IN   MATIT.US  OF  LKGISLATION.      373 

meiit  have  undoubtedly  tlie  ii;4lit  to  take  into  cousidenition 
other  matters  than  those  ulTeeting  merely  tlie  validity  of  tlie 
act.  For  instance,  they  may  and  sliould  consider  whether  it 
affects  imperial  or  dominion  interi'sts. 

The  same  principles  (amon<jj  others)  would  apply  in  de- 
ciding as  to  giving  or  withholding  assent  to  a  reserved  bill. 
The  government  have,  on  several  occasions,  dealt  with  pro- 
vincial acts  [as  well  as  with  bills  which  have  been  reserved 
for  the  consideration  of  the  governor-general  in  council]  upon 
those  principles.' 

In  1877,  a  pecidi.ar  case  arose  in  reference  to  an  not  nnminion 
irregidarly  passed  in  the  province  of  Quebec,  which  is  };',|^„7r(.- 
deserving  of  special  mention,  as  illustrating  the  control 
exercised  by  the  dominion  government  in  matters  of  smiiy 
provincial  legislation. 

A  bill  intituled  "an  act  to  provide  for  the  formation  of 
joint-stock  companies  for  the  maintenance  of  roads  and  the 
destruction  of  noxious  weeds,"  was  inadvertently  assented  to 
by  the  lieutenant-governor  of  the  province  of  Quebec,  upon 
a  certificate  that  it  had  duly  passed  both  houses  of  the  legis- 
lature. It  afterwards  transpired  that,  although  passed  by  the 
Legislative  Council,  it  had  only  been  read  twice  in  the  Assem- 
bly. Through  the  mistake  of  the  clerk,  it  was  certified  as 
passed  without  amendment,  returned  to  the  Legislative  Coun- 
cil, and  assented  to  by  the  lieutenant-governor.  On  the  dis- 
covery of  this  mistake,  the  governor-general  was  immediately 
appealed  to  by  the  provincial  attorney-general,  with  a  request 
that  he  would  disallow  the  act.  But  the  dominion  minister 
of  justice  (Mr.  Blake)  declined  to  advise  this  course.  He 
reported  that,  in  his  opinion,  "  the  assent  was  void,  and  the 


*  For  particular  instances,  see 
report  of  the  minister  of  justice  to 
council,  on  Oct.  16,  1870,  on  the 
Quebec  Act,  39  Vict.  (1875),  "to 
compel  assurers  to  take  out  a  li- 
cense." Canada  Sess.  Papers,  1877, 
no.  89,  p.  139.  Also,  the  order  in 
council  withholding  assent  to  a  re- 
served act  of  British  Columbia,  of 
1872.  Ihid.  p.  174.  Also,  the  or- 
ders in  council  respecting  four  re- 


served acts  from  Manitoba  in  1872, 
and  one  in  1876,  which,  though 
within  the  undoubted  comjietency 
of  the  provincial  legislature,  were 
regarded  by-  the  dominion  govern- 
ment as  being  premature  and  unne- 
cessary. Ibid.  pp.  179,  230.  Also, 
the  report  to  council  on  cap.  20  of 
the  acts  of  Manitoba  of  1875.  Ibid. 
p.  307. 


I™ 


11 


I 


•\':'  m 


H 


( 


374       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


I'  » 


h    t 


a    :l 


Control  of 
lofiislation 
in  terri- 
torial go- 
vern- 
ments. 


bill  is  not  an  act,"  and  under  these  circumstances  the  power 
of  disallowance  could  not  properly  be  exercised.  He  pointed 
out  that,  according  to  precedent,  an  act  might  be  passed 
in  the  ensuing  session  of  the  provincial  legislature,  to  de- 
clare this  act  to  be  invalid ;  and  that,  meanwhile,  it  v/as  in 
the  power  of  the  lieutenant-governor  in  council  to  refrain 
from  putting  it  into  operation.  This  report  was  cojjimuni- 
cated  to  tiie  Quebec  government,  who,  concurring  in  the  opi- 
nion that  the  act,  having  been  assented  to  in  error,  "was  but 
blank  paper,"  directed  that  it  should  not  be  printed  amongst 
the  statute^--  of  the  session." 

In  respect  to  the  north-west  territories  of  the  domi- 
nion of  Canada,  —  which  do  not  j^et  possess  representa- 
tive institutions  and  local  self-government,  but  are 
^Dresided  over  by  a  lieutenant-governor,  assisted  by  an 
executive  council,  both  appointed  by  commission  under 
the  great  seal  of  Canada,  —  the  dominion  government 
exercises  a  more  direct  and  less  limited  control.  These 
territories  were  constituted  by  acts  of  the  parliament  of 
Canada  passed  in  1871  (c.  16),  in  1875  (c.  49),  in  1876 
(c.  21),  and  in  1877  (c.  7).  Under  the  authority  of 
thest  statutes,  all  acts  or  ordinances  passed  by  the  lieu- 
tenant-governor and  council  of  the  territories,  "  come 
into  force  only  after  they  have  been  approved  by  the 
governor-general  in  council,  unless  in  case  of  urgency ;" 
and  all  ordinances  passed  in  the  council  may  be  dis- 
allowed by  the  governor-general  in  council,  at  any  time 
within  tvvo  years  of  their  being  passed.^ 

Thus,  the  act  passed  by  the  governor  and  council  of  the 
territories  in  1873,  to  authorize  the  appointment  of  magis- 
trates and  coroners  therein,  was  disallowed;  although  it  was 
"/ithin  the  competency  of  the  local  government  to  enact  it, 
because  the  governor-general  in  corncil  considered  "  that  until 
the  settlement  of  the  country  shall  have  reached  a  more  ad- 


"  Canada  Soss.  Pape.s,  1879,  no.  20.    Ihld.  no.  19. 
of  Lieutenant-(Jovernor  I^etellier,  pp.  1*2,  20. 
"  Orders  iu  Council,  1849-74,  pp.  40;i,  494. 


Papers  in  the  case 


[E  COLONIES. 


DOMINION  CONTROL  IN  MATTERS  OF  LEGISLATION.      375 

vancetl  stage,  it  will  be  inexpedient  to  allow  the  act  to  go 
into  operation."  ^ 

But  the  dominion  government  —  either  from  motives  .ludidai 
ot  policy,  or  otherwise  —  may  choose  to  abstain  from  o,nimUs 
the  exercise  of  the  powers  v::.oted  in  them  by  the  Bri-  5'bi'^^'^^*" 
tish  North  Ameri' a  act  to  disallow  objectionable  mea-  canatia. 
sures  passed  by  Uie  provhicial  legislatm-es.     And  yet 
certain  of  these  measures  may,  in  fact,  be  ultra  vires, 
and  beyond  the  competency  of  })rovincial  authority. 
In  such  a  contingency,  as  we  have  already  seen,  it  is  the 
right  and  duty  of  any  court  of  law,  within  the  province, 
to  entertain  and  decide  upon  the  validity  of  the  parti- 
cular statute,  or  provision  in  a  statute,  which  has  been 
impeached.''     The  judgment  of  the  court   upon  this 
question  is,  of  course,  open  to  appeal,  and  liable  to  be 
reviewed  and  annulled  by  a  court  of  superior  jurisdic- 
tion, whose   decision  likewise  may  be  examined  and 
adjudicated  unon,  either  by  the  Supreme  Court  of  the 
dominion,  or  by  the  judicial  committee  of  the  privy 
council  in  England. 

By  this  process,  a  final  and  authoritative  decision  can 
be  obtained,  in  respect  to  the  legality  of  any  provincial 
enactment,  from  the  highest  legal  tribunal  in  the  em- 
pire. And,  if  the  decision  should  be  adverse^  the  statute 
in  question  would  become  void  and  of  none  effect.  This 
valuable  safeguard  against  the  wrongful  exercise  of  the 
powers  of  provincial  legislatures  is  always  available, 
and  recourse  can  be  had  to  it  by  all  parties  who  con- 
sider themselves  aggrieved  by  any  provincial  statute, 
and  who  are  of  opinion  that  the  same  was  invalid. 

The  following  precedents  will  explain  the  circum- 


11 


Papers  in  the  case 


^  Canada   Sesp.    Papers,    1877,  domiiiiou     govevtiment    ovrr     the 

no.   8!),   p.  69.     See  further,  in  re-  saine,   ihitl.     1876,     no.    70;    ibid. 

eard  to  laws  and  ordinances  of  the  1878,  no.  45. 
local  ffoveniniciit  of  the  north-west         *  See  ante,  p.  219. 
territories,  and  the    control  of   the 


i  "If- 


' 


■  i 


r 

^  1: 

»|( 

i  I 

¥ 

M 

L 

Li 

Prece- 
dents of 
judicial 
decisions. 


376       PARLIAMENTARY  GOVERXMENT  IN  THE  COLONIES. 

stances  under  which  provinciiil  enactments  have  been 
reviewed  by  Canadian  courts  since  confederation:  — 

In  November,  1870,  the  Circuit  Court  of  Montreal  decided 
that  an  act  passed  by  the  Quebec  lec^islature,  to  extend  the 
l^owers  of  a  benefit  society,  called  "  The  Union  St.  Jacques 
of  Montreal,"  so  as  to  save  them  from  financial  embarrass- 
ment, was  unconstitutional  and  void  ;  inasmuch  as  it  trenched 
upon  powers,  in  relation  to  bankruptcy  and  insolvency,  ex- 
clusively reserved,  by  the  British  North  America  act,  1867, 
to  the  dominion  parliament.  This  judgment  was  affirmed 
by  the  Court  of  Queen's  Bench  for  the  province  of  Quebec. 
But  on  July  8,  1874,  the  judicial  committee  of  Mie  privy 
council  reversed  this  decision,  and  declared  the  act  in  ques- 
tion, as  dealing  with  a  matter  of  private  and  local  concern,  to 
be  within  the  competence  of  the  provincial  legislature .^ 

In  December,  1877,  the  Superior  Court  of  Quebec  decided 
that  the  provincial  legislature  had  not  power  to  declare  the 
salaries  of  employes  of  the  dominion  government  to  be  liable 
to  seizure ;  and  that  so  much  of  the  fifth  section  of  the  pro- 
vincial Act  38  Vict.  c.  12,  as  required  a  return  to  be  made  in 
regard  to  public  officers,  was  not  applicable  to  an  officer  ap- 
pointed by  the  dominion  government,  although  he  resided  in 
the  city  of  Montreal  in  the  capacity  of  collector  of  inland 
revenue  for  the  federal  government.^ 

In  March,  1878,  the  Ontario  Court  of  Appeal,  reversing  a 
judgment  of  the  Court  of  Queen's  Bench,  held  that  a  provincial 
legislature  is  not  competent,  under  the  British  North  America 
act,  1867,  to  impose  a  tax  upon  the  official  income  of  an  offi- 
cer of  the  dominion  government,  or  to  confer  power  to  this 
effect  upon  a  municipality  ;  and  that  a  section  of  an  Ontario 
statute,  which  authorized  the  levying  of  assessments  on  sala- 
ries of  dominion  officials,  was  ultra  vires.^ 


y  Quebec  Stat.  33  Vict.  c.  58. 
Lower  Canada  .Jurist,  vol.  xv.  p.  21'2. 
P.  C.  Appeals,  vol.  vi.  p.  31.  Law 
Times  Rep.  N.  S.,  vol.  xxxi.  p.  lU. 
The  sauie  point  was  raised  in  Dow 
t>.  Hlack;  wherein  the  judicial  coni- 
inittee  decided  that  a  New  Hruns- 
wick  statute,  declared  by  the  pro- 
vincial Supreme  Court  to  be  void, 
as  being  in  excess  of  the  jiowers  vest- 
ed in  the  provincial  legislature  by 


the  imperial  act,  was  within  the 
conqietency  of  that  legislature.  (P. 
C.  Ajipeals,  vol.  vi.  p.  272.)  See  a 
decision  upon  insolvency  legislation, 
KusHell  &  Chesloy,  N.  S.  Sup.  Ct. 
Kep.  vol.  i.  p.  187. 

*  L.  C.  Jurist,  vol.  xxii.  p.  208. 

«  Leprohon  v.  The  City  of  Ot- 
tawa, 40  U.  C.  Rep.  p.  480.  2  Out. 
A  pp.  Hep.  p.  522. 


COLONIES. 


DOMINION  CONTROL  IN  MATTERS  OF     LEGISLATION.     377 

In  July,  1878,  the  judicial  committee  of  the  privy  council  — 
affirming  judgments  of  the  Quebec  Court  of  Queen's  Bench, 
and  Lower  Canada  Superior  Court  —  decided  that  an  act  of 
the  Quebec  legislature  imposing  a  tax  upon  policies  of  assu- 
rance, and  on  receipts  and  renewals  thereof,  was  in  excess  of 
the  powers  of  provincial  legislatures  under  the  imperial  sta- 
tute, it  being  virtually  a  stamp  act,  and  not  —  as  it  purported 
to  be  —  merely  a  license  act.  It  did  not  impose  a  tax  on  tak- 
ing out  a  license  to  follow  the  business  of  insurance,  —  which 
would  have  been  within  the  competency  of  a  provincial  legis- 
lature,—  but  it  imposed  a  tax  on  the  taking  out  of  a  policy 
of  assurance.  A  provincial  legislature  may  impose  "  direct 
taxation  within  the  province,"  for  revenue  purposes.  But  a 
stamp  duty  is  "  indirect  taxation,"  which  can  only  be  levied 
by  authority  of  the  dominion  parliament.  The  act  was  ac- 
cordingly declared  to  be  ultra  vires  and  void.^ 

In  September,  1878,  the  Supreme  Court  of  British  Columbia 
decided  that  an  act  passed  by  tlie  provincial  legislature,  in 
the  preceding  session,  requiring  every  Chinese  person  over 
twelve  years  old  to  take  out,  under  heavy  penalties,  a  license 
every  three  months,  for  which  ten  dollars  shall  be  paid  in 
advance,  —  in  lieu  of  the  customary  taxation  payable  by  the 
people  for  public  purposes,  —  was  ultra  vires  and  unconstitu- 
tional ;  not  only  as  being  at  variance  with  the  treaty  obliga- 
tions between  Great  Britain  and  China,  under  which  Chinese 
immigrants  into  any  part  of  the  queen's  dominions  should  be 
free  from  exceptional  burdens  and  disabilities ;  but  primarily 
because,  under  the  British  North  America  act,  it  appertains  to 
the  dominion  parliament,  and  not  to  the  provincial  legislatures 
to  pass  laws  affecting  trade  and  commerce,  the  right  of  aliens, 
and  the  obligation  of  treaties." 


''  Attorney-General  lor  Quebec  v. 
The  Queen  Insurance  Conipany, 
Law  Rep.  3  App.  Cases,  p.  lono. 
In  Ilegina  v.  The  Justices  of  the 
Peace  of  King's  County,  a  section 
of  a  New  Bnuiswick  act  was  de- 
clared to  be  void,  as  be'ing  beyond 
the  powers  of  the  local  legislature. 
2  Pugsley  Hep.  p.  535.  For  similar 
cases,  .see  Ilegina  v.  Chandler,  1 
Hannay  Rep.  p.  548.  Ex  parte 
Marks,  Unpiibl.  Rep.  New  Bruns- 


wick,  nil.   T.    1872.      Regina  t». 
Lawrence,  43  U.  C.  Q.  B.  104. 

c  Judgment  of  Mr.  Justice  Gray, 
as  to  the  validity  of  the  Chinese 
tax  bill.  (Printed  by  order  of  go- 
vernment; see  Brit.  Columbia  Sess. 
Papers,  1879.)    Brit.  Col.  Statutes 

1878,  c.  35.     Governor's  speech  on 
opening  B.  C.   legislature,  Jan.  29, 

1879.  See  furtlier  on  this  subject, 
ante,  p.  159. 


:y 

B 

?"  *    - 

h 

i 

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;■ 

•« 

y 

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nif"iiriiliiiWl» 


I  ^r  mm  II 


li  I     i  \ 


ffr^ 


378       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES.    ^ 

By  two  judgments,  delivered  respectively  in  March  and 
May,  1879,  the  Ontario  Court  of  Appeals  gave  important  de- 
cisions in  the  construction  of  sub-section  two  of  the  ninety-first 
clause  of  the  British  North  America  act,  1867,  which  assigns 
all  matters  affecting  "  the  regulation  of  trade  and  commerce  " 
to  the  parliament  of  the  dominion,  and  of  sub-section  eleven 
of  the  ninety-second  clause  of  the  act,  whereby  "  the  incor- 
poration of  companies  with  provincial  objects,"  is  assigned  ex- 
clusivel}'  to  the  legislatures  of  the  provinces. 

The  judgments  above  mentioned  concerned,  firstly,  the 
Citizens'  Insurance  Company,  which  had  been  incorporated  by 
an  act  of  the  dominion  parliament,  passed  in  1876  ;  and,  se- 
condly, the  Western  Assurance  Company,  which  was  incorpo- 
rated by  the  parliament  of  Canada  before  confederation,  and 
their  charter  afterwards  amended  by  the  dominion  parliament. 
Cases  in  relation  to  these  companies  had  been  adjudicated 
upon  by  the  Court  of  Queen's  Bench  of  Ontario,  and  were 
submitted  afterwards  to  the  consideration  of  the  provincial 
court  of  appeals. 

This  court  decided  that,  while  "  the  regulation  of  trade  and 
commerce  "  iij  Canada  was  within  the  exclusive  jurisdiction 
of  the  dominion  parliament,  and  while  that  parliament  was 
competent  to  incorporate  companies  to  transact  insurance 
business  throughout  the  dominion,  with  liberty  to  enter  into 
such  contracts  as  should  come  within  the  designated  purposes 
of  the  company ;  yet  that  it  had  no  power  to  confer  privileges 
to  be  exercised  within  any  of  the  provinces,  except  with  their 
assent  and  recognition ;  and  could  not  authorize  a  company 
created  by  dominion  legislation  to  make  cont^'acts  in  particu- 
lar provinces,  except  as  the  legislature  of  the  province  might 
ratify  and  approve.  Any  provincial  legislature  was  compe- 
tent, in  its  discretion,  to  exclude  a  dominion  corporation  from 
entering  into  contracts  of  insurance  within  the  limits  of  the 
province  ;  or  might  exact  whatever  security  they  should  deem 
to  be  reasonable  for  the  performance  of  its  contracts. 

For,  within  their  respective  limits,  the  court  held  that  each 
legislature  is  supreme,  and  free  from  all  control  by  the  other. 

And  though,  by  a  dominion  statute,  the  general  powers  of 
a  company  previously  incorporated  are  capable  of  being  modi- 
fied or  enlarged,  such  company  is  not,  thereby,  removed  from 
the  scope  of  proviucial  legislation  prescribing  conditions  in- 


COLONIES.    ^ 

I  March  and 
important  de- 
he  ninety-first 
(vhich  assigns 
d  commerce  " 
lection  eleven 
y  "  the  incor- 
s  assigned  ex- 

l,  firstly,  the 
corporated  by 
876  ;  and,  se- 
i  was  incorpo- 
jderation,  and 
in  parliament. 
1  adjudicated 
rio,  and  were 
he  provincial 

1  of  trade  and 

e  jurisdiction 

rliament  was 

ct   insurance 

to  enter  into 

ted  purposes 

er  privileges 

|pt  with  their 

e  a  coinpany 

s  in  particu- 

)vince  might 

was  compe- 

lo ration  from 

limits  of  the 

should  deem 

lets. 

lid  that  each 
|y  the  other, 
powers  of 
Ibeing  modi- 
poved  from 
editions  in- 


!■', 


DOMINION  CONTROL  IN  MATTERS  OF  LEGISLATION.     379 

cidental  to  their  contracting  within  the  limits  of  the  pro- 
vince.'^ 

On  May  31,  1870,  Judge  Johnson,  sitting  in  the  Superior 
Court,  Montreal,  decided  that  the  power  claimed  by  the  city 
of  Montreal  to  impose,  by  way  of  a  penalty,  ten  per  cent  in- 
terest on  overdue  taxes,  and  which  had  been  enforced  under 
the  authority  of  an  act  of  the  Quebec  legislature,  passed  in 
1878,  was  illegal;  notwithstanding  that  such  a  power  had 
been  lawfully  conferred  by  the  provincial  parliament  of 
Canada,  prior  to  confederation.  Under  the  British  North 
America  act,  legislation  on  the  subject  of  interest  is  now  ex- 
clusively assigned  to  the  authority  of  the  dominion  parlia- 
ment.® 

In  October,  1879,  the  Supreme  Court  of  New  Brunswick 
gave  an  opinion  adverse  to  the  constitutionality  of  tlie  Canada 
temperance  act  of  1878;  one  of  the  judges  (Palmer)  dissent- 
ing. But  upon  this  question  so  much  diversity  of  opinion 
prevails,  that  it  is  evident  it  cannot  be  finally  disposed  of 
without  a  decision  from  tlie  Supreme  Court  of  the  dominion, 
which  is  the  appropriate  tribunal  for  finally  adjudicating  upon 
the  legality  of  legislation  passed  either  by  dominion  or  provin- 
cial authority. 

Again,  in  1879,  it  was  decided,  by  the  Supreme  Court  of 
New  Brunswick,  that  a  license  granted  by  the  minister  of 
marine  and  fisheries  of  the  dominion  of  Canada, — pursuant 
to  the  Canada  statute  (31  Vict.  c.  60)  for  the  regulation  of  the 
fisheries,  —  authorizing  certain  persons  to  fish  in  fresh-water 
rivers  in  New  Brunswick,  was  illegal.  The  court  were  of 
opinion  that,  inasmuch  as  the  several  provincial  legislatures, 
prior  to  confeder;  ':ion,  whilst  enacting  necessary  laws  for  the 
protection  of  fisheries,  had  always  scrupulously  abstained 
from  any  interference  with  the  right  of  property  of  the  ri- 
parian owners  in  tiie  fish,  it  was  therefore  not  competent  for 
the  dominion  parliament,  in  legislating  under  the  authority  of 
the  ninety-first  section  of  the  British  North  America  act,  in 
regard  to  "  the  sea-coast  and  inland  fisheries  "in  the  domi- 
nion, to  assume  a  greater  power  than  the  legislatures  of  the 
different  provinces  had  been  accustomed  to  exercise.     The 


^  Up.  Can.  Q.  B.  Rep.  vol.  xliii.         «  The     INIontreal    Legal    News, 
p.    265.     Out.  App.  Rep.    vol.  iv.     vol.  ii.  p.  180. 
pp.  96,  103,  281. 


1' 


Ji 


' 


4,1  ( 


id 


Eetablish- 
iiiont  of 
dominion 
Supreme 
Court. 


380       PARLIAMENTARY  GOVERNMENT  IN  IMF,  COLONIES. 

Ctinada  act  (31  Vict.  c.  60)  could  not  be  construed  to  author- 
ize the  grant  of  leases  in  fresh-water  rivers,  where  such 
rights  did  not  already  exist ;  and  any  lease  granted  by  the 
dominion  minister  of  marine  and  fisheries  to  fish  in  fresli- 
water  rivers  wliich  are  not  the  property  of  the  dominion,  or 
in  which  the  soil  is  not  in  the  dominion,  is  accoidingly  null 
and  void.  For  the  British  North  America  act  is  tiistribative 
merely,  in  respect  to  powers  of  legislation  exercisable  by  the 
dominion  parliament  and  by  the  local  legislatures  respectively ; 
and  the  dominion  parliament  may  not  intrench  upon  property 
and  civil  rights  which  are  under  the  guardianship  and  subject 
to  the  power  of  the  local  legislatures,  except  to  the  extent  that 
may  be  required  to  enable  parliament  "to  work  out  the  l^dsia- 
tion  upon  the  particular  subjects  specially  delegated  to  it."  ^ 

Similar  cases,  wherein  the  validity  of  acts  passed  by  pro- 
vincial legislatures  has  been  pronounced  upon  by  Canadian 
courts  of  law,  have  already  been  reviewed  in  other  parts  of 
this  volume,  and  need  not,  therefore,  be  specially  cited  in  this 
section.  It  will  be  sufficient  to  refer  to  the  case  of  the  school 
acts  passed  by  the  New  Brunswick  legislature  ;  ^  to  the  Onta- 
rio statute  for  the  union  of  Presbyterian  churches  ;**  and  to 
the  Goodhue  estate  act,  also  passed  by  the  legislature  of  , 
Ontario. ' 

As  an  indispensable  adjunct  to  the  great  imperial 
measure  which  joined  the  British  provinces  in  North 
America  in  federal  union,  the  dominion  parliament  was 
empowered  by  the  one  hundred  and  first  section  of  the 
British  North  America  act,  to  "  provide  for  the  consti- 
tution, maintenance,  and  organization  of  a  general 
court  of  appeal  for  Canada."  This  intention  of  the 
Imperial  Parliament  was  not  carried  out  until  1875, 
when  an  act  was  passed  for  the  establishment  of  a 
Supreme  Court  for  the  dominion,  which  should  serve  as 
a  court  of  appeal  from  the  provincial  courts,  and  like- 
wise possess  original  jurisdiction  as  an  exchequer  court 


^  Stciulman  r.  Robertson, 2  Pugs- 
ley  and  IJurbidge,  .^O. 
e  See  ante,  p.  317. 


•»  See  ante,  p.  350. 
'   See  ante,  p.  3G8. 


lil 


DLONIES. 

3(1  to  author- 
where  such 
nt'^d  by  the 
ish  in  fresh- 
Jonii'iion,  or 
•rdhigly  null 
uistribative 
sable  by  tlie 
espectively; 
•on  property 
and  bubject 
J  extent  that 
:;  the  l^dsja- 
3d  to  it!" ' 
aed  by  pro- 
)y  Canadian 
ler  parts  of 
cited  in  this 
f  the  school 
o  the  Onta- 
!s  ;  ^  and  to 
'islature   of 


t  imperial 
in  North 
iment  was 
:ion  of  the 
he  consti- 
i  general 
on  of  the 
itil  1875, 
nent  of  a 
1  serve  as 
and  like- 
luer  court 


DOMINION  CONTROL  IN  MATTERS  OF  LEGISLATION.      381 

in  revenue  causes,  .ind  other  cases  in  which  the  Crown 
is  interested.  In  1876,  further  jurisdiction  was  con- 
ferred upon  this  court  for  the  trial  of  suits  against  the 
Crown  in  Canada  by  petition  of  right. 

By  the  Supreme  Court  act  of  1875,  the  governor  in 
council  is  empowered  to  refer  any  matters  whatsoever 
to  the  court  for  hearing  or  consideration  ;  and  the  judges 
are  required  to  examine  and  report  upon  any  private 
bill,  or  petition  for  the  same,  that  may  be  referred  to 
them  by  the  Senate  or  House  of  Commons  of  the  domi- 
nion. It  is  also  provided  that,  when  the  ^3gislature  of 
any  province  in  Canada  shall  have  passed  an  act  agree- 
ing to  the  exercise  by  the  Supreme  Court  of  jurisdiction 
in  controversies  between  the  dominion  and  any  such 
province,  or  between  any  two  or  more  provinces ;  or,  in 
suits  wherein  the  question  of  the  validity  of  a  dominion 
or  provincial  statute  is  material  to  the  decision  thereof, 
then  the  Supreme  Court  shall  exercise  jurisdiction  in 
regard  to  such  matters.  The  legislature  of  Ontario,  by 
an  act  passed  in  1877  (40  Vict.  c.  5),  authorized  and 
confirmed  such  references  to  the  Supreme  Court  on  be- 
half of  the  province  of  Ontario. 

Herein  consists  the  peculiar  value  and  importance  of  impor- 
a  supreme  court  in  a  colony,  or  dominion,  wherein 
a  federal  government  has  been  established.  Such  a  cJJij'Jt'"^ 
tribunal  is  available  for  the  determination  of  all  legal 
controversies  between  the  supreme  and  the  local  autho- 
rities ;  and  especially  of  questions  resulting  from  the 
exercise  of  the  legislative  power,  whether  by  the  fede- 
ral or  provincial  legislatures.  It  is  the  very  crown  and 
counterpoise  of  all  authority  entrusted  to  subordinate 
governments  by  imperial  law,  and  it  affords  a  constitu- 
tional method  of  ascertaining  the  proper  bounds  and 
limitations  as  well  of  provincial  as  of  federal  rights.  It 
is  the  truest  and  most  effectual  safeguard  of  the  people 
against  the  abuse  of  powers,  either  on  the  part  of  the 


I 


I'- 


tancc  of  a 
dominion 


u 


i 


(f 


t 


I 


'Hi  I 

It: 


M 


Its  valu- 
able de- 
cisions on 
constitu- 
tional 
questions. 


On  taxing 
powers 
of  local 
legisla- 
tures. 


382       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

greater  or  lesser  body  upon  which  jurisdiction  has  been 
conferred.  Independent  of  party  conflicts,  and  supe- 
rior to  the  corrupt  influences  by  which  all  legislatures 
are  liable  to  be  assailed,  a  supreme  court  conveys  an 
element  of  stability  and  of  respect  for  the  supremacy 
of  law,  not  otherwise  attainable  in  political  institutions. 
It  is  likewise  a  guarantee  for  the  impartial  administra- 
tion of  justice,  and  for  the  maintenance  of  sound  princi- 
ples of  government,  without  which  popular  institutions 
would  easily  degenerate  into  an  instrument  of  oppres- 
sion. Such  advantages  have  already  accompanied  tho 
establishment  of  a  supreme  court  for  the  dominion  of 
Canada.  Although  but  five  years  have  elapsed  since 
the  creation  of  this  court,  it  has  already  determined 
several  weighty  and  intricate  questions  of  constitutional 
la.v^,  wherein  a  conflict  of  opinion  and  of  powers  had 
arisen  between  the  local  and  the  federal  authorities.  ^ 

For  example,  mention  may  here  be  made  of  two  important 
docisions  of  the  Supreme  Court,  —  in  addition  to  the  cases 
cited  in  the  note  to  the  preceding  paragraph,  —  one  of  which 
disposes  of  the  question  of  the  validity  of  a  provincial  enact- 
ment, and  the  other  confirms  a  statute  passed  by  tlie  do- 
minion parliament,  which  had  occasioned  much  litigation, 
and  had  been  adjudicated  upon,  in  contrary  ways,  by  several 
provincial  courts. 

In  January,  1878,  the  dominion  Supreme  Court  decided,  on 
an  appeal  from  a  judgment  of  the  Ontario  Court  of  Queen's 
Bench,  that  the  act  of  the  Ontario  legislature  (37  Vict.  c.  32), 
requiring  brewers  to  take  out  a  license  for  the  sale  of  fermented 
or  malt  liquors  by  wholesale^  was  not  within  the  competency 
of  a  provincial  legislature  ;  that  the  power  to  tax  and  regulate 
the  trade  of  a  brewer,  being  a  matter  of  excise,  and  the  rais- 
ing of  money  by  "  taxation,"  as  well  as  for  the  restraint  and 
"  regulation  of  trade  and  commerce,"  is  comprised  within  the 


J  See  especially  the  judgment  on 
the  question  of  queen's  counsel, 
«?i/e,  p.  215;  the  judgment  on  the 
powers  of  local  legislatures,  jwst, 


p.  468  ;  the  judgment  on  cleri- 
cal interference  at  elections,  ante, 
p.  317,  and  the  judgments  noted  in 
the  text. 


;OLONIES. 

on  has  been 
,  and  siipe- 
legislatares 
conveys  an 
supremacy 
institutions, 
administra- 
>und  princi- 
institutions 
b  of  oppres- 
ipanied  thi- 
ominion  of 
ipsed  since 
letermined 
isticutional 
owers  had 
lorities.  ^ 

D  important 
0  the  cases 
le  of  which 
icial  enact- 
by  tlie  do- 
litigation, 
by  several 

[lecided,  on 
of  Queen's 
ict.  c.  32), 
"  fermented 
ompetency 
id  regulate 
id  the  rais- 
traint  and 
within  the 


it  on  cleri- 
ctions,  ante, 
nts  noted  in 


DOMINION  CONTliOL  IN  MATTERS  OF  LEGISLATION.      383 

class  of  subjects  reserved,  by  the  ninety-first  section  of  the 
British  North  America  act,  to  the  exclusive  legislative  autho- 
rity of  the  dominion  parliament;  and  that  the  license  imposed 
by  the  said  provincial  statute  was  a  restraint  and  regulation 
of  trade,  and  not  an  exercise  of  municipal  or  police  power. 
Under  the  iniiety-second  section  of  the  imperial  act,  local 
legislatures  are  empowered  to  deal  exclusively  with  such 
licenses  only  as  are  of  a  local  or  municipal  description.  The 
taxing  power  of  a  provincial  legislature  (as  has  been  affirmed 
by  the  judicial  committee  of  the  privy  council,  in  a  case 
already  referred  to''  ),  is  confined  to  direct  taxation,  in  order  to 
3'aise  a  provincial  revenue  ;  and  to  the  grant  of  licenses,  to 
shops,  saloons,  taverns,  auctioneers,  and  "  other  licences,"  for 
purely  municipal  and  local  objects,  for  the  purpose  likewise  of 
raising  a  reven.; )  for  provincial,  local,  or  municipal  purposes.^ 
Moreover,  this  taxing  power  of  the  local  government  must 
not  be  exercised  so  as  to  encroach  upon,  or  to  conflict  with, 
the  taxation  in  aid  of  dominion  revenue,  which  is  authorized 
to  be  exclusively  imposed  by  the  federal  parliament.'" 

In  January,  1879,  the  Superior  Court  of  the  province  of  on  domi- 
Quebec  decided,  that  the  dominion  controverted  elections  act  "'O"  ^V^ 
of  1874,  which  imposed  certain  duties  upon  the  judges  of  that  election 
court  for  the  trial  of  election  petitions  against  the  return  of  Petitions, 
members  elected  to  serve  in  the  dominion  House  of  Commons, 
was  within  the  competency  of  the  dominion  parliament,  under 
the  British  North  America  act,  1867 ;  notwithstanding  that, 
by  the  ninety-second  section  of  this  act,  "  exclusive  powers  " 
are  conferred  upon  the  provincial  legislatures  to  make  laws 
respecting  "  the  administration  of  justice  "  in  the  respective 
provinces,  "  including  the  constitution,  maintenance,  and  or- 
ganization of  provincial  courts,  both  of  civil  and  of  criminal 
jurisdiction." 

This  court  held  that,  while  the  dominion  parliament  could 
not  alter  the  "  constitution  "  of  provincial  courts,  or  enlarge 
their  powers,  even  for  the  purpose  of  enabling  them  to  try 
election  petitions,  as  aforesaid,  yet  that  these  courts  were 
already  competent  to  undertake  such  duty,  as  they  possessed 


Re 


*  Attorney-Generd  for  Quebec  v.   The  Queen    Insurance  Co.,  Law 

ip.  3  App.  Cas.  1000.     See  ante,  p.  377. 

^  Canada  Supreme  Court  Rep.  vol.  ii.  pp.  70,  88,  97. 

"•  Ibid.     Judge  Fournier,  pp.  130-133.    Judge  Henry,  pp.  13G-140. 


w 

n 

m 

, 

i 

' 

'! 

,:i 

■  ■- 

1 

■ 

i   ■ 

1 
I 

i 
t 

> 

f 

\i 


I " 


f-i 


J 


^     .1'; 


ii>m\  ^ 


i 


'U 


PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


civil  jurisdiction  to  try  and  determine  "  all  civil  matters " 
arising  within  the  province.  And  inasmuch  as  the  dominion 
parliament  was  undoubtedly  competent,  by  the  express  au- 
thority of  the  imperial  act,  to  create  a  new  court  for  the  trial 
of  con':ioverted  elections  (a  j)rivilege  of  which  it  had  actually 
availed  itself  by  an  act  past;ed  in  1873,  and  since  repealed)  it 
was  equally  empowered,  instead  thereof,  at  its  discretion,  to 
assign  to  the  judges  of  *  '  '^  courts,  judicial  duties  for  the 
determination  of  such  .^i  ..ions,  the  same  not  being  incon- 
sistent with  their  primary  and  ordinary  functions,  but  rather 
being  services  which  they  were  specially  qualified  to  render 
on  behalf  of  the  dominion." 

This  doctrine  had  previously  been  affirmed  by  the  Ontario 
Court  of  Common  Pleas,  in  December,  1878,  the  judges  unani- 
mously agreeing  that  the  election  trials  act  of  1874  was  bind- 
ing upon  them.°  It  was  also  approved  by  the  Court  of 
Review  at  Montreal,  in  1875,  in  two  distinct  cases.i*  An 
elaborate  judgment  to  the  same  effect  was  rendered  by  the 
Quebec  Provincial  Court  at  St.  Hyacinthe  and  Sorel.  On  a 
motion  to  appeal  therefrom,  made  before  the  Court  of  Appeals 
at  Montreal,  as  also  upon  other  similar  occasions,  Chief-Justice 
Sir  A.  A.  Dorion  vindicated  the  right  of  the  dominion  parlia- 
ment to  impose  the  duty  of  trying  federal  election  petitions 
upon  Provincial  Courts.  He  a'^serted  that  the  dominion  par- 
liament, when  legislating  upon  matters  within  its  jurisdiction, 
could  impose  duties  upon  any  subjects  of  the  queen  in  the 
dominion,  whether  they  were  officials  of  provincial  courts, 
other  officials,  or  private  citizens.^ 


"  Chief  Justice  Meredith,  in 
Lanpflois  et  al.  v.  Valin.  It  sliould 
be  stated,  however,  that  in  tliree 
other  actions  brought  before  the  Su- 
perior Court,  at  Quebec,  in  .January, 
1S7P,  wherein  the  same  question 
was  substantially  laised,  two  deci- 
sions, adverse  to  the  constitutional- 
ity of  the  dominion  statute,  w^ere 
rendei'ed,  by  different  judges,  and 
but  one  confirming  the  law,  as  ex- 
plained by  C.  J.  Meredith.  Belan- 
ger  ef  al.  v.  Caron ;  Dubuc  et  al.  v. 
Vail  ;  Guay  el  al.  v.  Blanchet, 
Quebec  Law  Reports,  vol.  v.  nos.  1 
and  2.     In  April,  1879,  Judge  Mc- 


Cord,  in  the  Superior  Court  of 
Montmagny ,  likewise  gave  judgment 
against  the  dominion  statute.  Ibid. 
vol.  V.  p.  191. 

o  Ontario  Common  Pleas  Rep. 
vol.  xxix.  p.  261. 

P  Lower  Canada  Jurist,  vol.  xx. 
pp.  77,  86. 

«  Bruneau  v.  Massue,  L.  C.  Ju- 
rist, vol.  xxiii.  p.  60.  The  same 
point  arose  in  other  cases  before  the 
Court  of  Appeal,  which  were  not  re- 
ported ;  but  the  decisions  uniformly 
sustained  the  judgment  of  the  court, 
as  rendered  by  Chief -Justice  Dorion. 


T!l 


DOMINION  CONTROL  IN  MATTERS  OF  LEGISLATION.      385 

The  validity  of  the  dominion  election  trials  act  of  1874  was   Validity 
thus  conlirmed  by  the  weight  of  judicial  authority.     But  in-  J^iJJI'"!"^. 
asniuch  as  decisions  to  the  contrary  effect  had  been  given  by  tion  triuU 
several  learned  judges,  the  question  was  appropriately  sub-  *'^"^' 
rnitted  to  the  consideration  of  the  Supreme  Court  of  the  do- 
minion, upon  an  appeal  from  the  judgment  of  Chief-Justice 
Meredith  in  the  case  of  Valin  v.  Langlois. 

On  Oct.  28,  1879,  the  Supreme  Court,  in  judgments  deli- 
vered by  all  the  judges  present,  unanimously  agreed  to  dismiss 
the  appeal  with  costs,  thereby  confirming  the  constitutionality 
of  the  dominion  statute,  upon  grounds  equally  applicable  to 
all  the  provinces. 

The  court  were  of  opinion  that,  under  the  British  North 
America  act,  the  exclusive  legislative  power  of  the  provincial 
Assemblies  was  limited  and  confined  to  the  subjects  specifi- 
cally assigned  to  them.  But  that  all  other  powers  of  legisla- 
tion for  the  welfare  and  good  government  of  the  dominion, 
including  what  is  specially  assigned  to  the  dominion  parlia- 
ment, but  not  so  as  to  restrict  the  generality  of  the  supreme 
authority  conferred  upon  the  same  by  the  imperial  statute, 
were  expressly  and  exclusively  conferred  upon  the  parliament 
of  Canada.  In  fact,  the  authority  of  the  federal  power,  over 
the  matters  left  under  its  control,  is  exclusive,  full,  and  abso- 
lute ;  whilst,  as  regards  at  least  some  of  the  matters  left  to  the 
provincial  legislatures,  their  authority  cannot  be  construed  as 
being  similarly  full  and  exclusive,  when,  by  such  construction, 
the  federal  power  over  matters  specially  left  under  its  control 
would  be  lessened,  restrained,  or  impaired. 

That,  in  matters  which  concern  the  election  of  their  mem- 
bers, the  dominion  House  of  Commons  had  undoubted  and 
exclusive  jurisdiction.  It  was  therefore  competent  to  parlia- 
ment to  transfer  to  the  civil  tribunals  in  the  several  pro- 
vinces, having  superior  original  jurisdiction,  cognizance  of  all 
rights  arising  out  of  election  petitions ;  and  that  in  so  doing 
there  was  no  invasion  or  encroachment  whatever  upon  the 
rights  of  local  legislatures.  And  that,  inasmuch  as  parliament 
may  transfer  such  cognizance  absolutely,  it  may  do  so  quali- 
fiedly  or  sub  modo^  by  defining  the  mode  in  which  the  cogni- 
zance shall  be  exercised;  which,  l)y  prescribing  the  mode  of 
procedure,  is  what  was  actually  done.  Neither  is  such  pre- 
scribing of  the  mode  of  procedure  an  encroachment  upon  the 

25 


,fi 


:h 


i 

iii: 


» 


\  \\ 


)        !■ 


I 


^Ji 


^■JJC— ■U^rfTt-  -aa 


'; 


386     PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

rights  of  the  local  legislatures ;  for  the  fourteenth  sub-section 
of  the  ninety-second  clause  of  the  British  North  America 
act  must  plainly  be  read  as  conferring  upon  the  local  legis- 
latures the  right  to  prescribe  procedure  only  in  such  civil 
matters  as  were,  by  the  preceding  sub-section,  placed  under 
their  exclusive  control. 

That  the  dominion  parliament  is  at  liberty  either  to  create 
new  courts,  when  public  necessity  may  require  it,  for  the  bet- 
ter administration  of  the  laws  of  Canada;  or  to  assign  to  the 
jurisdiction  of  existing  courts  any  further  matters,  appio- 
priate  to  their  sphere  of  duty.  For,  when  legislating  within 
its  proper  bounds,  the  dominion  parliament  is  clearly  compe- 
tent to  require  existing  courts,  in  the  respective  provinces, 
and  the  judges  of  the  same,  who  are  appointed  by  the  domi- 
nion, paid  by  the  dominion,  and  reriovable  only  by  address 
from  the  dominion  parliament,  to  enforce  their  legislation. 
Such  an  exercise  of  authority  constitutes  no  invasion  of  the 
rights  of  the  local  legislatures. 

That  the  exclusive  power  of  the  local  legislatures  to  make 
laws  in  relation  to  "  property  and  civil  rights  in  the  province  " 
must  necessarily  be  read  in  a  restricted  and  limited  sense; 
because  many  matters  which  directly  involve  property  and 
civil  rights  are  legitimately  and  without  question  affected, 
controlled,  and  guarded  by  dominion  legislation.  The  com- 
petent^ of  the  local  legislatures  to  make  laws  respecting  civil 
rights  is  confined  to  those  "  civil  rights "  which  are  not 
affected  by  dominion  powers  of  legislation,  and  do  not  come 
within  the  scope  of  the  same.  Moreover,  it  is  expressly  pro- 
vided, in  the  ninety-first  section  of  the  British  North  America 
act,  that  any  matter  coming  within  any  of  the  classes  of  sub- 
jects assigned  to  the  exclusive  authority  of  the  dominion 
parliament  shall  not  be  deemed  to  come  within  the  class  of 
matters  of  a  local  or  private  nature  comprised  in  the  enume- 
ration of  the  subjects  assigned  by  this  act  to  the  exclusive 
legislative  authority  of  the  provinces."" 

The  foregoing  decisions,  and  especially  those  of  the 
Supreme  Court  of  the  dominion,  are  of  inestimable  value 


"■  Canada  Supreme  Court  Rep.  :  judgments  delivered  on  Oct.  28, 1879, 
by  Chief-Justice  llitcliie,  and  by  Judges  Fournier,  Henry,  Taschereau, 
and  Gwynne. 


DLONIKS. 

l\\  sub-section 
ji'th  America 
e  local  Icgis- 
in  such  civil 
placed  under 

Lher  to  create 
t,  for  the  bet- 
assign  to  the 
itters,  ai)i)iO- 
dating  within 
learly  conipe- 
ve  provinces, 
by  the  domi- 
y  by  address 
r  legislation, 
v^asion  of  the 

ures  to  make 
lie  province  " 
imited  sense ; 
property  and 
tion  affected, 
1.     The  com- 
specting  civil 
lich   are   not 
do  not  come 
xpressly  pro- 
orth  America 
asses  of  sub- 
he  dominion 
the  class  of 
1  the  enume- 
/he  exclusive 

;hose  of  the 
nable  value 


1  Oct.  28, 1879, 
y,  Taschereau, 


POMIMON  CONTROL   IX   MATTERS  OF  LKrJISLATION.      387 

in  the  construction  oftho  written  constitution  conferred  .Tndicini 
upon  Canada  by  the  British  North  America  act.  They  "LulT  ' 
lift  out  of  the  narrow  g-roove  of  a  mere  technical  inter-  l";"''''j','r'^' 
pretalion  principles  of  legislation  concerning  wliich  Ca-  t''^'-' 
nadian  statesmen,  whether  federal  or  provincial,  need 
to  be  accurately  informed,  and  should  be  agreed.  They 
secure  to  the  dominion  parliament  the  exclusive  con- 
tnd  and  determination  of  all  questions  of  national  im- 
port and  significance  ;  while  tliey  uphold  the  provincial 
governments  in  their  statutory  right  to  fi'ame  whatso- 
ever laws  may  be  necessary  to  develop  their  internal 
resources,  and  to  strengthen  and  improve  their  local 
and  municipal  institutions.  For  vigilance,  and  the  ex- 
ercise of  judicial  impartiality,  by  legal  tribunals,  is 
equally  indispensable  to  prevent  encroachment  by  the 
dominion  parliament  upon  local  rights,  —  which  have 
been  assigned  by  imperial  authority  to  the  guardianship 
and  control  of  the  provincial  legislatures,  —  and  to  pre- 
vent invasion  by  local  legislatures  of  the  powers  which 
appertain  to  the  supreme  jurisdiction  of  the  dominion 
parliament. 

The  appropriate  limits  of  dominion  and  of  provincial 
jurisdiction,  thus  ascertained  and  confirmed  by  judicial 
authority,  coincide  with  the  opinions  expressed  by  lead- 
ing statesmen  in  the  Imperial  Parliament  as  to  the 
powers  intended  to  be  granted  to  the  federal  and  local 
governments  established  in  Can.ada  by  the  British  North 
America  act,**  —  powers  that  were  broadly  defined  and 
apportioned  in  that  statute,  but  not  so  explicitly  as  to 
dispense  with  the  need  for  judicial  interpretation,  which 
is  the  surest  and  safest  method  of  deciding  all  constitu- 
tional controversies. 


•  See  Hans.  Deb.  vol.  clxxxv.  pp.  566,  1178. 


'^mI 

m 

* 

V  f 

|i  i 

■ 


■ 


if 


'£  i 

'i  I 


J.^ 


iiHM«SMiHn£ 


\\ 


;i 


I 


\ 


I 


Provincos 
ill  the  do- 
minion of 
Canada, 


388     PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


2.   Dominion  control  over  the  Canadian  provinces  in  matters 

of  administration. 

The  local  governments  which  form  part  of  the  domi- 
nion of  Canada,  under  the  authority  of  the  British 
North  America  act  of  1867,  are  as  follows :  The  pro- 
vinces of  Ontario,  Quebec,  Nova  Scotia,  and  New 
Brunswick,  which  were  included  in  the  original  act  of 
confederation,  in  1867;  the  province  of  Manitoba,  which 
entered  the  union  in  1870 ;  the  province  of  British 
Columbia,  which  entered  in  1871 ;  the  province  of 
Prince  Edward  Island,  which  entered  in  1873 ;  and  the 
north-west  territories,  which  are  separately  governed 
by  a  governor  and  council. 

By  the  one  hundred  and  forty-sixth  section  of  the  act 
of  1867,  authority  was  given  to  the  queen  in  council  to 
admit  into  the  union  any  of  the  provinces  or  territories 
in  British  North  America  (including  Newfoundland) 
which  were  not  originally  comprised  therein,  on  ad- 
dresses from  the  houses  of  parliament  of  Canada,  em- 
bodying the  terms  and  conditions  of  union  agreed  upon 
with  the  local  authorities  concerned.  The  island  of 
Newfoundland  still  remains  outside  of  the  union,  and  is 
the  only  colonial  government  in  North  America  that  has 
not  expressed  a  desire  to  participate  in  the  benefits  of 
the  same. 

Inasmuch  as  the  several  local  governments  now,  or 
hereafter  to  be  included  in  the  dominion  of  Canada,  are, 
by  the  provisions  of  the  British  North  America  act  of 
1867,  subordinated  to  the  authority  of  the  queen,  as 
exercised  by  the  governor-general  of  Canada,  and  are 
thereby  exempted  from  the  direct  control  and  oversight 
of  the  imperial  government,  it  is  necessary  to  inquire 
what  provision  has  been  made  for  the  exercise  of  execu- 
tive authority  in  these  provinces. 


I. 


iLONIES. 


8  in  matters 

f  the  domi- 
the  British 
:  The  pro- 
,  and  New 
ginal  act  of 
toba,  which 
of  British 
)rovince  of 
3 ;  and  the 
Y  governed 

n  of  the  act 
1  council  to 
r  territories 
foundland) 
lin,  on  ad- 
anada,  em- 
^reed  upon 
island  of 
lion,  and  is 
ca  that  has 
benefits  of 

its  now,  or 
anada,  are, 
rica  act  of 
queen,  as 
la,  and  are 
1  oversight 
to  inquire 
e  of  execu- 


•,  i 


CONTROL  IX  MATTERS  OF  ADMINISTRATION. 


389 


By  the  fifty-eighth  and  sixty-seventh  sections  of  the 
imperial  act  aforesaid,  the  governor-general  is  empow- 
ered —  by  and  with  the  advice  of  the  dominion  privy 
council,  and  under  the  great  seal  of  Canada  —  to  appoint 
a  lieutenant-governor  in  and  over  each  of  the  provinces ; 
and  also  an  administrator,  who  shall  execute  the  office 
and  functions  of  the  lieutenant-governor  during  the 
absence,  illness,  or  other  inability  of  that  personage. 

The  commissions  under  which  the  lieutenant-gover- 
nors of  provinces  in  Canada  exercise  the  functions  of 
their  office  "  authorize  and  empower  and  require  and 
command  "  them  "  to  do  and  execute  all  thiuii-s  that  shall 
belong  "  to  the  command  and  trust  confided  to  them, 
by  virtue  of  their  commission  and  of  the  provisions  of 
the  British  North  America  act,  18G7,  in  accordance 
with  which  they  have  been  appointed.  And  likewise 
"  according  to  such  instructions  as  are  herewith  given 
to  you,  or  which  may  froui  time  to  time  be  given  to 
you,"  "  under  the  sign-manual  of  our  governor-general," 
"  or  by  order  of  our  privy  council  of  Canada."  * 

But,  in  point  of  fact,  it  would  seem  that  though  the 
conunission  of  a  lieutenant-governor  expressly  refers 
to  instructions  accompanying  it,  yet  no  instructions  of 
either  an  affirmative  or  a  negative  kind  have  been 
sent  with  the  commissions,  or  afterwards,  at  least  as 
regards  the  older  provinces  of  the  dominion." 

On  the  appointment,  however,  of  the  Hon.  A.  G. 
Archibald,  in  July,  1870,  as  lieutenant-governor  of  the 
province  of  Manitoba,  under  the  provisions  of  a  domi- 
nion act  for  the  establishment  of  a  government  therein, 
preliminary  instructions  for  his  guidance  in  office 
were  approved  by  the  governor-general  in  council  on 
Aug.  2  following,  and  directed  to  be  forwarded  to  Mr. 


Control  of 
the  gover- 
nor-gene- 
ral 


over  lieu- 
teniiiit-jro- 

Vl'l•Il(>r^Sllf 

tlu'  pro- 
vinces. 


*  See  a  form  of  the  commission  momorandum    of    Dec.    10,    187:1, 

in  Canada  Senate  Journals,  1878,  in  Ontario  Sess.  Papers,  1874,  no. 

p   175.  11).     And  see  ante,  p.  302. 

"  Attorney  -  General     Mowat's 


t  m 


:l       ',i 


Ti'  i-tn     %inrKini|<« jppi 


'         'ifii 


Office  of 
lieute- 
nant-go- 
vernor. 


390     PAIILIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

Archibald  by  the  under-secretary  of  state  for  the 
provinces. 

These  instructions  direct  that  the  lieutenant-governor 
shall  "  be  guided  by  the  constitutional  principles  and 
precedents  which  obtain  in  the  older  provinces  "  They 
enjoin  upon  him  the  duty  of  forming  a  responsible 
executive  council,  in  reference  to  which  he  is  com- 
manded to  give  his  advisers  "  the  full  exercise  of  the 
powers  which  in  the  older  provinces  have  been  wisely 
claimed  and  freely  exercised  ;  "  "  but,"  it  is  added,  "  you 
will  be  expected  to  maintain  a  position  of  dignified 
impartiality,  and  to  guard  with  independence  the 
general  interests  of  the  dominion,  and  the  just  autho- 
rity of  the  Crown."  ^ 

At  the  same  time,  the  lieutenant-governor  of  Mani- 
toba was  appointed  by  another  commission  lieutenant- 
governor  of  the  north-west  territories,  and  he  received 
from  the  department  of  the  dominion  secretary  of  state 
special  instructions  for  his  guidance  in  the  government 
of  those  territories.  These  instructions  principally 
relate  to  dealings  with  the  Indian  tribes,  and  to  open- 
ing up  the  country  for  settlement.'^ 

The  lieutenant-governor  of  every  province  in  the 
dominion  holds  office  "  during  the  pleasure  of  the 
governor-general."  The  office  is  usually  held  for  a 
period  of  five  years  only,  although  the  incumbent 
thereof  may  be  reappointed  for  one  or  more  additionjil 
terms.  But  it  is  expressly  provided  by  the  British 
North  America  act  that  no  lieutenant-governor  of  a 
Canadian  province  "  shall  be  removable  within  five 
years  from  his  appointment  except  for  cause  assigned, 
which  shall  be  communicated  to  him  in  writing,  within 
one  month  after  the  order  for  his  removal  is  made; 


V  Canada  Se.ss.  Papers,  1871,  no.     teiiant-p^ovornor  was  appointed  for 
20.  these  territories. 

^  Ibid.     lu  187G,  a  separate  lieu- 


>LONIES 

,te    for   the 

nt-governor 
nciples  and 
e«"  They 
responsible 
he  is  com- 
rcise  of  the 
been  wisely 
J  tied, "  yoii 
3f  dignified 
idence  the 
just  autho- 

or  of  Mani- 
lieutenant- 
[le  received 
ary  of  state 
government 
principally 
d  to  open- 
ice  in   the 
-u^e  of   the 
held  for  a 
incumbent 
additional 
he   Bi'itish 
Grnor  of  a 
within   live 
e  assigned, 
ing,  within 
is  made; 

appointed  for 


CONTROL  IN  MATTERS  OF  ADMINISTRATION. 


391 


which  cause  shall  also  be  communicated  by  message, 
within  a  week  thereafter,  to  both  houses  of  the  dominion 
parliament."  " 

It  has  been  authoritatively  stated  of  these  officers  Limited 
that,  "  however  important  locally  their  functions  may  li'i-mc-^ " 
be,  [they]  are  a  part   of  the    colonial  administrative  JI["',Iu^ra 
staff,    and   are   more  immediately  responsible   to   the 
governor-general  in  council.     They  do  not  hold  com- 
missions from  the  Crown,    and    neither  in   power   or 
privilege  resemble  those  governors,  or  even  lieutenant- 
governors,    of    colonies,    to   whom,   after   special  con- 
sideration of  their  personal  fitness,  the  queen,  under 
the  Great  Seal  and  her  own  hand  and  signet,  delegates 
portions  of  her  prerogatives,  and  issues  her  own  in- 
structions." y 

Not  being  directly  nominated  or  appointed  by  the 
sovereign,  the  lieutenant-governors  of  the  provinces  in 
Canada  are  not  entrusted  with  the  administration  of  the 
more  eminent  and  personal  prerogatives  of  mercy  or 
of  honour.  Previous  to  confederation,  the  power  of 
exercising  the  royal  prerogative  of   pardon  was  con- 


1IM 

m 

''if  j 

■ 

i 

1 

'{ 

^»^i 

|i 

'l 

>     s 

fi 

\ 

' 

'  Bfitish  Xorth  America  Act, 
1867,  sees.  "j8-<57.  Tiie  provision  in 
the  fifty-niutli  clause  was  introduced 
"  to  prevent  tlie  possil)ility  of  its  be- 
ing supposed  tliat  lieutenant-gover- 
nors, under  tlie  new  n'l/une,  were  of 
necessity  to  be  in  syinpatiiy  with  the 
dominion  ministry  of  tlie  day,  cand  to 
be  removable  with  every  change  of 
party."  And  also  "  to  operate  as  a 
check  upon  the  capricious  and  arbi- 
trary exercise  of  the  power  of  dis- 
missal, by  compelling  the  ministry 
to  submit  the  reasons  for  the  exer- 
cis?  of  the  royal  pleasure  to  parlia- 
ment." Sir  J.  A.  Macdonald's 
memorandum  in  Commons  Papers, 
1878-79,  C.  no.  2445,  p.  108. 

y  Despatch  of  the  colonial  secre- 
tary (Earl  Carnarvon)  to  governor- 
general  of  Canada  (Earl  Dufforin), 
of  Jan.  7,  1875;  Canada  Sess.  Pa- 


pers, 1875,  no.  11,  p.  .38.  "Un- 
der the  circumstances  of  the  case, 
the  lieuteuiuit-governors  of  the  pro- 
vinces, holding  their  commissions 
from  the  governor-general,"  are  not 
entitled  to  sahiti's  from  her  Majes- 
ty's ships  and  fortirtcations  witiiin 
their  respective  provinces.  I)e-  ^  y  .  ^ 
spatch    of    the    colonial    secretary       /  tC^ 


.-      -^ 


(Duke   of   Buckingham)  to  Gover 
nor-deneral  Monck,  dated  Oct.  19, //c 
18()8.     Accordin"'  to  the  official  Ta- 


2< 


ble  of  Precedence  in  Canada,  lieu-  ^y^,'^'^  ^ 
tenant-governors  rank  next  after  the         /  ^  ^ 


-  ->-''  „.   " 

.-7     5* 

general  eonunanding  her  Majesty's  (//'''■■        ^ms,  p^*^ 
troops   within   the   dominion,    and    -  ,  .  a^*^   0 
the   admiral  commanding  her  Ma-  ./^     # 
josty's  naval  forces  on  the  British        ^C 
North   American  station.      During  A-/*" 
their  term  of  office  they  are  styled 
"his  Honour."     Una.  Jidy  23  and 
24,  18U8.     See  ante,  pp.  228-232. 


i. .  p 


;i 


''. 


iirwi-'ii-i  liiTii' 


I 


\l.h 


): 


I  low  far 
llie>  re- 
present 
tlie 
Crown. 


392       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

ferred  upon  the  lieutenant-governors  of  the  several 
provinces  in  British  North  America.  But  that  power 
was  withdrawn  in  1867,  not  only  by  the  revocation  of 
the  letters-patent  under  which  it  was  exercised,  but 
also  by  the  act  of  the  queen  in  assenting  to  the  British 
North  America  act,  which  changed  the  status  of  lieu- 
tenant-governors in  Canada,  and  annulled  the  powers 
formerly  conferred  upon  them,  except  in  so  far  as  they 
were  specially  retained  by  that  statute.^  Since  con- 
federation, neither  the  prerogatives  of  mercy  or  of 
honour  can  be  administered  by  the  lieutenant-gover- 
nors :  they  can  only  be  exercised  in  Canada  by  the 
sovereign  directly,  or  through  her  representative,  the 
governor-general,  by  virtue  of  an  express  authority 
given  to  him  in  his  commission  or  by  instructions  from 
the  Crown.* 

It  is,  nevertheless,  a  mistake  to  infer,  from  the  limited 
jurisdiction  and  functions  assigned  to  the  lieutenant- 
governors  of  the  Canadian  provinces  under  the  British 
North  America  act,  that  they  are  not  to  be  accounted 
as  being  in  any  degree  representatives  of  the  Crown. 
Though  appointed  to  office  by  the  governor-general  in 
council  under  the  great  seal  of  Canada,  their  commis- 
sions run  in  the  name  of  the  sovereign.**  The  form  of 
government  which,  by  their  oath  of  office,  they  are 
enjoined  to  administer,  is  monarchical ;  and  their  powers 
as  lieutenant-governors  proceed  directly,  as  well  as 
indirectly,  from  the  Crown  of  Great  Britain.  In  the 
several  royal  commissions  appointing  the  governor- 
general  of  the  dominion,  from  the  period  of  confedera- 
tion until  October,  1878,  the  lieutenant-governors  of 


'  See   Uppor     Canada     Assem.  1877,  no.  89,  pp.  3.32-335.     British 

Jounials,  1839,  appx.  vol.  ii.  pt.  Cohnubia  Sess.  Papers,  1878,  p.709. 
ii.    p.    G2.'>:    Canada  Sess.  Papers,         *»  See  the  commission  of  the  lieu- 

1869,  no.  16.     British  North  Ame-  tenant-governor  of  Quebec;  in  Ca- 

rica  Act,  1807,  sees.  12,  14,  05.  nada    Senate    Journals,     April    8, 

•  See     Canada     Sess.     Papers,  1878. 


OLONIES. 


CONTROL  IN  MATTERS  OF  ADMINISTRATION. 


393 


; 


Bir  comniis- 


the  provinces  are  expressly  referred  to,  and  they  were 
directly  authorized  by  those  instruments  "  to  exercise 
from  time  to  time,  as  they  may  judge  necessary,  all 
powers  lawfully  belonging "  to  the  sovereign  "  in 
respect  of  assembling  or  proroguing,  and  of  dissolving 
the  legislative  councils  or  the  legislative  or  general 
assemblies  of  those  provinces  respectively."  " 

In  the  revised  commission  issued,  in  October,  1878,  powers 
to  the  Marquis  of  Lome,  upon  his  appointment  as  go-  roylucom- 
vernor-ffeneral  of  Canada,  this  clause,  in  reference  to  the  "''s^'on 

'^  '  '  and  con- 


powers   and    duties   of  the    lieutenant-governors. 


was    federation 

But  this  omission  is  not  attributable  to  any 


omitted. 

intention  on  the  part  of  the  imperial  government  to 
diminish  the  rightful  authority  of  these  officers,  or  to 
disconnect  the  particular  functions  of  state  in  question 
from  a  direct  relation  to  the  Crown.  The  words  were 
left  out  from  the  governor-general's  commission  at  the 
suggestion  of  Mr.  Blake,  then  minister  of  justice  f"." 
Canada,  and  in  consequence  of  representations  addressed 
by  him,  as  we  have  already  seen,  in  June,  1876,  with  a 
view  to  a  general  revision  of  the  commission  and  in- 
structions issued  to  the  governor-general  of  Canada,  so 
as  to  exclude  from  these  instruments  all  superfluous 
and  extraneous  recitals,  and  to  make  them  accord  with 
existing  constitutional  usage.  In  his  comments  upon 
this  clause  in  former  commissions,  since  confederation, 
Mr.  Blake  remarks  as  follows :  "  The  provision  giving 
these  powers  to  the  lieutenant-governors  by  the  go- 
vernor-general's commission  appears  somewhat  objec- 
tionable, and  it  might  perhaps  be  advisable  to  leave  these 
matters  to  be  dealt  with  by  those  officers  under  the 
British  North  America  act,  the  eighty-second  section  of 
which  in  terms  confers  on  the  lieutenant-governors  of 
the  new  provinces  of  Ontario  and  Quebec  the  power,  in 


"  Earl  of  Dufferin's  commission  in  Canada  Commons  Jom-nals,  ^farch 
28,  1873.    See  also  the  British  North  America  Act,  18G7,  sees.  Gl,  82. 


'■•     =! 


I     -I 


I 


,1 


.   f 


'   >' 


They  rc- 
prosoTit 
tlio  Cn)\vn 
in  the  lo- 
cal legis- 
latures. 


May  with- 
hold the 
royal  as- 
sent from 
bills. 


394       TARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

the  queen's  name,  to  summon  the  local  bodies,  a  power 
-which  no  doubt  was  assumed  to  be  continued  to  the 
governors  of  the  other  provinces."  '^  Elsewhere,  Mr. 
Blake  suggests  that,  if  needful,  a  separate  commission 
could  be  issued  by  the  sovereign  to  the  lieutenant- 
governors  for  this  purpose  ;  but  he  was  clearly  of  opi- 
nion that  that  was  unnecessary,  because,  in  his  judgment, 
full  powers  for  the  performance,  on  behalf  of  the  Crown, 
of  these  acts  of  executive  authority  must  be  taken  to 
have  been  conferred,  cither  expressly  or  impliedly,  by 
the  British  North  America  act." 

Inasmuch,  then,  as  the  Crown,  wath  the  sanction  and 
by  the  express  authority  of  the  Imperial  Parliament, 
has  authorized  the  lieutenant-governors  of  the  provinces, 
"  from  time  to  time,"  "  by  instrument  under  the  great 
seal  of  the  province,"  to  "  summon  and  call  together  " 
the  several  provincial  legislatures,  it  equally  devolves 
upon  these  high  officers  of  state,  "  in  the  queen's  name," 
to  open  and  to  close  these  assemblies ;  and,  in  con- 
formity with  their  instructions,  and  pursuant  to  their 
constitutional  discretion,  to  give  or  to  withhold  the 
assent  of  the  Crown  to  the  bills  enacted  therein,  or  to 
reserve  the  same  for  the  consideration  of  their  superior 
ollicer,  his  Excellency  the  governor-general. 

It  is  worthy  of  notice  that,  since  confederation,  the 
lieutenant-governorb  in  the  provinces  of  Quebec  and 
Ontario,  while  they  have  occasionally  reserved  bills 
for  the  consideration  of  the  governor-general,  have 
never  "  withheld  "  the  assent  of  the  Crown  from  any  bill 
passed  by  the  provincial  legislature. 

In  Nova  Scotia  and  in  New  Brunswick,  it  has  been 
otherwise.  In  Nova  Scotia,  Lieutenant-Governor  Archi- 
bald has,  on  five  several  occasions,  in  the  years  1874  to 


^  Canada  Sess.  Papers,  1877,  no.  13,  p.  7.     And  see  ante,  p.  84. 
«  Corresjiondence  in  Canada  Sess.  Tapers,  1877,  no.   13;  1879,  no. 
181.     And  see  further  on  this  point,  ante,  p.  329. 


)LONIES. 

3s,  a  power 
lied  to  the 
where,  Mr. 
Gominission 
lieiitenant- 
arly  of  opi- 
^  judgment, 
the  Crown, 
30  taken  to 
ipliedly,  by 

mction  and 
Parliament, 
3  provinces, 
r  the  great 

together  " 
ly  devolves 
)n\s  name," 
id,  in  con- 
11 1  to  their 

hliold  the 
3rein,  or  to 

ir  superior 

ration,  the 
uebec  and 
srved  bills 
oral,  have 
3m  any  bill 

has  been 
nor  Archi- 
Irs  1874  to 


e,  p.  84. 

3;  1879,  uo. 


CONTROL  IN  MATTERS  OF  ADMINISTRATION. 


395 


1870,  refused  to  assent  to  bills.  And  in  New  Bruns- 
wick the  same  course  was  taken  by  Lieutenant-Governor 
"Vilmot,  in  1870,  1871,  and  1872,  and  by  Lieutenant- 
Governor  Tilley  in  1875  and  1877. 

So  far,  at  least,  as  Nova  Scotia  is  concerned  (and  I 
have  no  reason  to  doubt  that  the  action  of  the  lieu- 
tenant-governor in  New  Brunswick  could  be  similarly 
accounted  for),  this  unusual  proceeding,  on  the  part  of 
the  lieutenant-governor,  was  not  attributable,  in  any 
instance,  to  a  disagreement  between  himself  and  his  con- 
stitutional advisers. 

The  British  North  America  act,  1867,  section  fifty- 
five, — ^as  applied  to  the  provincial  constitutions  by 
section  ninety,  —  expressly  empowers  a  lieutenant-go- 
vernor, in  "  his  discretion,"  to  "  withhold "  the  royal 
assent  from  any  bill  presented  to  hinu 

But  the  act  of  a  lieutenant-governor,  in  withholding 
the  assent  of  the  Crown  to  a  bill  which  has  been  passed 
by  the  legislative  chambers,  —  wherein  a  responsible 
minister  should  be  able  to  exercise  a  constitutional  in- 
fluence in  the  control  of  legislation/  —  is  obviously  a 
difficult  and  delicate  proceeding.  It  is  one  that  must, 
at  the  outset,  be  advised  by  a  minister,  who  is  willing 
to  become  responsible  for  the  same  to  the  legislature. 
If  a  lieutenant-governor  should,  for  any  reoon,  deem 
it  imperative  upon  him  to  take  such  a  course,  and  his 
ministers  should  not  agree  therein,  he  must  be  prepared 
to  accept  their  resignation,  and  be  able  to  form  a  new 
ministry,  by  whom  the  act  proposed  could  be  constitu- 
tionally advised  and  justified  to  both  houses. 

In  regard  to  the  action  of  Lieutenant-Governor  Archi- 
bald, in  Nova  Scotia,  I  liave  been  favoured  with  infor- 
mation which  enables  me  t^  explain  the  circumstances 
under  which  he  exercised  the  royal  prerogative  in  with- 


'  See  Todd,  Pari.  Govt.  vol.  ii.  pp.  305,  318. 


y:i 


m 


'i   . 
Si 

:1 


f 


396       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


Exorcise     holdinoj  his  assent  to  bills  in  the  cases  above  men- 


of  this  pre-  tioned 
rogative       ti^Jiteu. 

in  Nova 
iScutia. 


Ontario 
prece- 
dents. 


Jn  every  one  of  the  instances  wherein  he  interposed 
the  veto  of  the  Crown  upon  provincial  legislation,  he 
acted  under  the  advice  of  his  ministers,  who  agreed  with 
him  in  an  anxious  desire  to  keep  within  the  bounds 
assigned  to  the  provincial  legislature  by  the  British 
North  America  act,  and  to  refrain  from  enacting  any 
measure  to  which  exception  could  be  justly  taken,  on 
the  ground  of  its  being  in  excess  of  the  powers  conferred 
upon  the  local  legislatures  by  the  imperial  statute. 

The  bills  in  question,  from  which  Lieutenant-Gover- 
nor Archibald  withheld  the  sanction  of  the  Crown,  were 
bills  which,  after  they  had  passed  both  houses,  appeared 
upon  careful  examination,  and  on  being  subjected  to 
the  scrutiny  of  the  lieutenant-governor  as  a  responsible 
officer  of  the  dominion,  to  be  ultra  vires,  or  to  be  oiher- 
wise  objectionable  for  reasons  that  had  escaped  notice 
during  their  progress  through  the  legislative  chambers. 

Whereupon,  it  was  agreed  by  the  local  administra- 
tion, as  the  least  objectionable  method  of  obviating  the 
difficulty,  to  advise  the  lieutenant-governor  to  reject 
these  bills.  Otherwise,  tliey  would  certainly  have  been 
disallowed  by  the  dominion  government,  after  having 
been  in  force  up  to  the  time  of  their  disallowance. 

Had  the  lieutenant-governor  been  advised,  instead, 
to  reserve  these  bills  for  the  consideration  of  the  gover- 
nor-general in  council,  the  dominion  government  might 
have  complained  that  they  had  been  required  to  decide 
in  a  case  which  was  within  the  competency  and  juris- 
diction of  the  lieutenant-governor  by  the  tenor  of  his 
commission  to  determine. 

Thus,  in  1873,  the  domir'  n  government  took  excep- 
tion to  two  local  bills  to  incorporate  certain  Orange 
Societies,  which  the  lieutenant-governor  of  Ontario  had 
reserved  for  the  consideration  of  the  governor-general. 


1  COLONIES. 

3  above  men- 
he  interposed 
legislation,  he 

0  agreed  with 

1  the  bounds 
y  the  British 
enacting  any 
5t]y  taken,  on 
^ers  conferred 
I  statute. 
:^enant-Gover- 

Crown,  were 

ses,  appeared 

subjected  to 

a  responsible 

to  be  Gvher- 

caped  notice 

ve  chambers. 

administra- 

bviating  the 

or  to  reject 

y  have  been 

after  havintr 

)wance. 

sed,  instead, 

f  the  gover- 

ment  might 

ed  to  decide 

y  and  juris- 

tenor  of  his 

took  excep- 
ain  Orange 
3ntario  had 
lor-general. 


CONTROL  IN  MATTERS  OF  ADMINISTRATION. 


397 


precedent 


The  dominion  minister  of  justice  reported  that  these 
bills  were  clearly  within  the  competence  of  the  local 
legislature,  and  that  the  local  government  ought  to 
have  assumed  the  responsibility  of  disposing  of  them. 
Accordingly,  no  action  was  taken  upon  these  bills,  by 
the  governor-general  in  coimcil.'' 

In  1878,  the  lieutenant-governor  of  Quebec  reserved  Quebec 
a  bill,  passed  by  the  legislative  chambers,  to  give  cer- 
tain powers  to  "  the  Quebec,  Montreal,  Ottawa,  and 
Occidental  Raihvay."  Ministers  had  promoted  this  bill, 
but  the  lieutenant-governor  was  decidedly  opposed  to 
it  on  broad  grounds  of  principle,  and  he  deliberately 
refused  to  assent  to  it.  For  this,  and  other  reasons, 
the  lieutenant-governor  dismissed  the  ministry,  and 
appointed  a  new  administration  who  agreed  with  the 
governor  in  disapproving  of  this  railway  bill.  The  in- 
coming premier,  "  being  in  doubt  as  to  the  lieutenant- 
governor  having  the  right  of  his  own  accord,  ex  proprio 
moti(,  to  exercise  the  prerogative  of  veto,  and  thus  to 
decide  finally  on  the  fate  of  a  measure  passed  by  both 
houses,  when  the  British  North  America  act  of  1867 
seems  to  leave  such  power  to  the  governor-general, " 
concurred  with  his  predecessor,  and  advised  that  the 
bill  should  be  reserved.^  The  dominion  government, 
however,  took  no  action  upon  it.  In  the  next  session 
of  the  Quebec  legislature,  another  bill  of  an  unexcep- 
tionable character,  v/as  proposed  by  the  new  ministers 
and  became  law.' 

It  would  have  been  more  in  accordance  with  consti- 
tutional doctrine,  and  in  agreement  with  precedents 
previously  established  in  other  provinces  of  the  domi- 
nion, if  M.  Joly,  whose  ministry  replaced  the  adminis- 
tration dismissed  from  office  by  the  lieutenant-governor 


Where 
tliis  prero- 
gative 
sliould 
linvo  been 
used. 


«  Ontario  Sess.  Papers,  First  Sess.  1874.  no.  19. 

••  Quebec  Leg.  Assera.  Journals,  1877-78,  ppi  230,  272. 

'  Quebec  Stats.  41  and  42  Vict.  c.  3. 


]f 


I 


0 


KWi^AMftUUU 


'1i* 


'   t    1 


3*1 


N 


\ 


% 


The 
Crown 
tlio  source 
of  all  ex- 
ecutive 


398     PARLIAMENTARY  GOVERNMENT  IN  TIIE  COLONIES. 

of  Quebec,  had  advised  that  the  assent  of  the  Crown 
should  have  been  withheld  from  this  obnoxious  railway 
bill,  instead  of  reserving  it  for  the  consideration  of  the 
governor-general.J 

In  the  distribution  of  powers,  —  whether  appertain- 
ing to  the  federal  or  the  provincial  constitutions,  — 
under  the  British  North  America  act,  "  the  Crown  of 
the  United  Kingdom  of  Great  Britain  and  Ireland  "  is 
recognized  as  the  source  of  all  executive  authority 
throughout  the  dominion. 

And  the  lieutenant-governors  —  who  are  sworn  to 
fulfil  the  duties  of  their  station  by  oaths  "  similar  to 
those  taken  by  the  governor-general "  —  are,  within 
authority  the  limits  of  their  respective  governments,  and  subject 
to  the  supreme  authority  of  the  governor-general,  ex- 
pressly authorized  by  the  imperial  statute  to  exercise 
"  all  powders,  authorities,  and  functions "  previously 
"  vested  in  or  exercisable  by  the  respective  governors 
or  lieutenant-governors  of  those  provinces "  prior  to 
confederation,  "  so  far  as  the  same  are  capable  of  be- 
ing exercised,  after  the  union,  in  relation  to  "  the  par- 
ticular provinces.  This  constitutes  and  empowers  the 
lieutenant-governors  to  be  the  appropriate  channels  to 
represent  and  administer  the  authority  of  the  Crown  in 
their  several  provinces ;  and  to  convey,  through  sub- 
ordinate functionaries,  that  authority  in  all  matters 
wherein  it  is  necessary  for  the  Crown  to  act  through 
the  provincial  executive.''  Thus,  through  "the  disci- 
pline and  subordination  which  should  connect  together 
in  one  unbroken  chain  the  Crown  and  its  representa- 
tive in  the  province,  down  to  the  lowest  functionary  to 
whom  any  portion  of  the  powers  of  the  state  may  be 
confided,"  the  "  royal  authority,"  assigned  to  and  re- 


'  See  Todd,  Pari.  Govt.  vol.  ii.    1867:  preamble  and  sees.   58  62, 
p.  310.  and  65,     And  see  the  Ontario  Rev. 

^  British  Xorth  America    Act,     Stats,  c  15. 


i"ff 


3  COLONIES. 

of  tlie  Crown 
loxious  railway 
leration  of  the 

her  appertain- 
institutions,  — 
the  Crown  of 
nd  Ireland  "  is 
tive  authority 

are  sworn  to 
IS  "  similar  to 
—  are,   within 
s,  and  subject 
)r-general,  ex- 
e  to  exercise 
previously 
ive  governors 
jes "  prior  to 
ipable  of  be- 
to  "  the  par- 
mpowers  the 
channels  to 
the  Crown  in 
through  sub- 
all   matters 
act  through 
"the  disci- 
lect  together 
representa- 
inctionary  to 
tate  may  be 
1  to  and  re- 


nd sees.   58-  62, 
he  Ontario  Rev. 


CONTROL  IN  MATTERS  OF  ADMINISTRATION. 


399 


lilc  iro- 
verninont 
ill  the  pro- 
vinces. 


presented  by  a  duly  accredited  officer,  is  "  most  dis- 
tinctly admitted  as  one  of  the  component  and  in- 
separable principles  of  the  social  system  "  in  British 
North  America ;  and  every  British  subject  throughout 
the  dominion  shares  equally  with  his  brethren  in  the 
mother-land  in  the  protection  and  blessings  of  mo- 
narchial  rule.* 

But  the  authority  of  the  Crown,  in  the  provinces  Rosponsi 
as  well  as  in  the  dominion,  is  exercised  and  adminis- 
tered in  conformity  with  the  obligations  of  "  responsi- 
ble government."  That  system,  as  we  have  already 
seen,  was  introduced  into  all  the  British  North  Ameri- 
can provinces  prior  to  confederation.  Accordingly,  in 
the  sections  of  the  British  North  America  act  which 
treat  of  the  executive  power  in  the  provincial  constitu- 
tions, it  is  declared  that  the  executive  council  of  each 
province  "  shall  be  composed  of  such  persons  as  the 
lieutenant-governor,  from  time  to  time,  thinks  fit ;  and 
that  the  powers,  authorities,  and  functions  heretofore 
vested  in  or  exercisable  by  the  several  governors  or 
lieutenant-governors  of  these  provinces,  with  the  ad- 
vice or  with  the  advice  and  consent  of  or  in  conjunction 
with  the  respective  executive  councils,  or  any  mem- 
bers thereof," —  words  identical  with  those  used  in  a 
preceding  clause  to  define  the  constitutional  relations 
between  the  governor-general  and  "  the  queen's  privy 
council  for  Canada,"  —  shall  continue  to  be  discharged 
in  like  manner,  after  confederation,  by  the  lieutenant- 
governors,  "  as  far  as  the  same  are  capable  of  being 
exercised,  after  the  union,  in  relation  "  to  the  provin- 
cial governments.'"     These  words  unmistakably  show 


'  See  Lord  Glenelg's  despatch  to 
the  Earl  of  Gosford,  in  Commons 
Papers,  1836,  vol.  xxxix.  p.  7. 
And  his  despatch  to  Lieutenant-Go- 
vernor Head.  Ibid.  1839,  vol. 
xxxiii.  p.  5. 


•"  British  North  America  Act, 
1867,  socs.  63,  64.  Compare  sees. 
12  and  65  of  the  act.  And  see  Sir 
John  A.  Macdonald's  remarks  on 
this  point,  in  Commons  Papers, 
1878-79,  C.  2145,  p.  108. 


! 


400       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


Judicial 
(k't'isioiis 
as  to 

powers  of 
a  lieute- 
nant-go- 
vernor. 


that  the  Imperial  Parliament  has  ratified  and  enjoined 
a  continuance  of  the  exercise  of  executive  power  in  the 
various  provinces  of  the  dominion,  in  accordance  with 
the  usages  of  responsible  government ;  and  that  it  con- 
temphites  tliat  tlie  lieutenant-governors  therein  should 
occupy,  towards  their  executive  council  and  towards  the 
local  legislature,  the  identical  relation  occupied  by  the 
governor-general  in  Canada  and  by  the  queen  in  the 
United  Kingdom  towards  their  several  privy  councils 
and  parliaments. 

Tile  position  herein  claimed  for  the  lieutenant-^^^'over- 
nors  of  the  provinces  in  Canada  —  that,  as  being  the 
chief  executive  officers  in  the  local  governments,  they 
do  represent  the  Crown  in  divers  weighty  and  impoi- 
tant  public  functions,  both  legislative  and  administra- 
tive —  has  been  repeatedly  acknowledged  and  sustained 
by  decisions  of  the  courts,  and  by  legislative  enactments, 
wherein  the  right  and  duty  of  a  lieutenant-governor  to 
administer  such  portions  of  the  royal  prerogative  as  are 
essential  to  the  conduct  of  a  government  founded  upon 
a  monarchial  basis  have  been  unequivocally'  asserted. 

Thus,  in  1874,  a  controvers}'  arose  between  the  dominion 
government  and  the  provincial  authorities,  in  Ontario  and  in 
Quebec,  in  respect  to  escheats.  By  a  decision  of  the  Court 
of  Queen's  Bench,  of  the  province  of  Quebec,  in  1876,  upon 
an  appeal  from  an  inferior  court,  the  right  of  the  province  to 
the  control  of  escheats  "^^<\  forfeitures,  within  the  province, 
was  affirmed.  Whereupon  it  was  agreed,  between  the  domi- 
nion and  provincial  governments,  that  —  until  or  unless  there 
should  be  a  judicial  decision  establishing  a  contrary  principle  — 
"  lands  and  personal  property  in  any  province,  escheated  or 
foifeited  by  reason  of  intestacy,  without  lawful  heirs  or  next 
of  kin,  or  other  parties  entitled  to  succeed,  are  subjects  ap- 
pertaining to  the  province,  and  within  its  legislative  compe- 
tency; "  while,  on  the  other  hand,  "lands  a">d  personal 
property  forfeited  to  the  Crown  for  treason,  felony,  or  the 
like,  are  subjects  appertaining  to  the  dominion,  and  within 


E  COLONIES. 


CONTROL  IN  MATTERS  OF  ADMINISTRATION. 


401 


its  lef]fisliitive  competence.""  This  case  involved  the  ques- 
tion of  the  status  of  a  lieutenant-governor  in  a  province  of 
Canada,  and  the  extent  to  which  such  an  otlicer  was  compe- 
tent to  act  on  behalf  of  the  Crown,  and  to  administer  a  pn;- 
rogative  inherent  m  the  Crown.  It  atlirms  the  i)rin('ii)le  — 
in  opposition  to  the  contention  of  the  dominion  government, 
in  the  first  instance  —  that  while  certain  prerogatives,  exer- 
cisable at  the  discretion  of  the  sovereign,  thongh  not  with- 
out the  advice  of  responsible  ministers  (such  as  the  preroga- 
tives of  mercy  and  of  honour),  ougiit  not  to  be  administered 
by  a  lieutenant-governor,  yet  that  ordinary  prerogative  rights 
may  suitably  be  exercised,  on  behalf  of  the  Crown,  by  the 
chief  execirtive  officer  in  the  province,  holding  a  limited  com- 
mission, which  runs  in  the  name  of  the  sovereign. 

It  has  also  been  determined,  in  conformity  with  the  LoRisia- 
opinion  of  tlie  law  officers  of  the  Crown  in  England, —  tills  qucs- 
and  in  opposition  to  the  opinion  expressed  by  the  do-  •'"" 
minion  minister  of  justice,  —  that  lieutenant-governors 
of  the  provinces  are  competent  to  exercise  the  prero- 
gative right  of  marriage  licenses,  and  the  provincial 
legislatures  to  pass  laws  regulating  the  same."      This 
has  since  been  ratified  by  the  Revised  Statutes  of  Onta- 
rio, c.  124,  sec.  5. 

The  Onlario  Revised  Statutes,  c.  15,  sec.  15,  empower 
the  lieutenant-governor  of  the  province  to  remit  the 
forfeiture  or  penalty,  in  certain  civil  cases,  which  would 
otherwise  accrue  to  the  Crown. 

Pursuant  to  the  British  North  America  Act,  sec. 
136,  and  under  the  authority  of  the  dominion  Statute, 
1877,  c.  24,  which  was  passed  to  remove  doubts  on 
the  subject,  so  far  as  the  dominion  parliament  was 
competent  to  determine  the  same,  the  lieutenant-go- 
vernor in  council,  in  each  province  of  Canada,  is  de- 


ii.i 


nl 


:r 


n,  and  within 


"  Canada    Sess.    Papers,  1877,    province    of    New    Brunswick,  in 
no.  89,  pp.  88-105.     And  see  ibid.     1877,  c.  9. 

p.  232.    A  law  to  the  same  effect         "  Canada  Sess.  Papers,  1877,  no. 
was  passed  by  the  legislature  of  the    89,  p.  339. 

26 


I 


i 


'  ':  f; 


it!. 

I 


f  11 !! 


■\4L        It 


402       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

clared  to  have  the  power  of  appointing,  and  of  altering 
from  time  to  time,  the  great  seal  of  the  province.^' 

And  in  the  case  of  Regina  v.  Amer  et  ah,  it  was  held 
by  Mr.  Justice  Wilson  that,  since  confederation,  the 
lieutenant-governor  of  Ontario  (equally  with  the  go- 
vernor-general of  the  dominion)  is  capable  of  exercising 
the  prerogative  right  of  issuing  special  commissions  to 
hold  courts  of  assize,  for  the  trial  of  criminal  offences.'' 

It  is  evident,  therefore,  that,  in  a  modified  but  most 
real  sense,  the  lieutenant-governors  of  the  Canadian 
provinces  are  representatives  of  the  Crown. 

Let  us  now  inquire  into  the  extent  to  which  these 
lieutenant-governors  ''  are  more  immediately  responsi- 
by  central  blc  to  tlic  govcmor-general  iu  council : "  and  into  the 
nlent.  duty  wliicli  properly  devolves  upon  the  central  govern- 
ment in  any  group  of  confederated  colonies  to  exercise 
towards  the  subordinate  provinces  the  degree  of  con- 
stitutional oversight  and  control  which  the  imperial 
executive  maintains  over  the  whole  empire. 

Such  supervision  in  Canada  would,  as  we  have  seen, 
sometimes  necessitate  a  direct  interference  with  the 
proceedings  of  the  provincial  authorities,  and  the  dis- 
allowing of  acts  wherein  they  had  transgressed  the 
assigned  limits  of  their  powers,  or  had  sought  to 
give  effect  to  principles  which  were  inimical  to  the 
interests  of  sister  provinces  or  of  the  confederation 
generally. 


Control 
over  lieu- 
tenant-go- 
vernors 


P  Canada  Sess.  Papers,  1877,  no. 
86.  Nova  Scotia  Assein.  Journals, 
1878,  appx.  no.  iO.  'J'lie  judfjes  of 
the  Supreme  Court  in  Nova  Scotia 
pointed  out  in  '■'  The  (ireat  Seal  " 
case,  in  1877,  that  her  Majesty,  in 
assenting  (through  the  governor- 
general)  to  certain  provincial  acts, 
authf)rizing  "  her  lieutenant-gover- 
nor "  to  exercise  her  prerogative 
right,  in  the  use  of  the  great  seal  in 
and  for  the  province,  —  "  to  the  ex- 
tent in  which  it  is  necessarily  con- 
feiied  on  that  high  olHcer  by  the 


statute,"  —  did  expressly  delegate  to 
and  empower  lieutenant-goveriMrs 
to  exercise  certain  prerogative  rights 
appro] >riate  to  the  otlici;  of  the  re- 
j)resentative  of  the  sovereign  in  tiie 
j)articular  province.  (See  Canada 
Sess.  Papers,  1877,  no.  b(J,  p.  30.) 
The  dominion  Supreme  Court,  in 
reviewing  the  decision  in  the 
"(ireat  Seal"  case,  in  1879,  did 
not  contravene  this  jiosition.  See 
ante,  p.  247. 

•J  Ontario  Q,  IJ.  Hep.  vol.  xlii. 
p.  391, 


'■^ 


Z  COLONIES. 

Lnd  of  altering 
jrovince.^' 
al,  it  was  held 
^'ederation,  the 

with  the  go- 
[c  of  exercising 
commissions  to 
inal  offences.'^ 
lified  but  most 

the    Canadian 

vvn. 

to  which  these 
iately  responsi- 
:"  and  into  the 
central  govern- 
nies  to  exercise 

degree  of  con- 
h   the   imperial 

pire. 

s  we  have  seen, 
rence  with  the 
es,  and  the  dis- 
ransgressed  the 
had  sought  to 
inimical  to  the 
e   confederation 


(1  expressly  delegate  to 

lieuteuaiit-goven'  'vs 

tain  prerogative  riglits 

)  the  otlict;  of  the  re- 

f  the  sovereign  in  the 

)vince.     (See  Canada 

1877,  no.  80,  p.  30.) 

n  Snprenie    Court,  in 

he     decision     hi    the 

"   case,   in   1879,  did 

lie  this  position.     See 

Q.  li.  Hep.  vol.  xlii. 


CONTROL  IN  MATTERS  OF  ADMINISTRATION. 


403 


Hi! 


iiialtcrs. 


But  in  addition  to  the  control  which,  under  these  cir-  Supervi- 
cumstances,  would   be  appropriately  fulfilled    by   the  (.I!|"ral 
central  government,  there  is  a  further  duty  which  the  K<>virn- 
existing  relation  between  a  central  and  a  subordinate  provincial 
government  obviously  entail;^  upon  the  former.    Having 
been  constitutionally  empowered  to  represent  towards 
subordinate  provinces,  associated  together  in  confedera- 
tion, the  supreme  authority  of  the  Crown,  and  to  act 
towards  them  in  that  behalf,  the  central  government 
should  be  prepared  to  afford  to  the  sever.al  subordinate 
governments  the  benefit  of  its  interposition  and  advice 
upon  all  matters,  whether  of  administration  or  of  legisla- 
tion, wherein  the  same  could  be  advantageously  rendered. 

The  extent  to  which  such  interference  would  be  justi- 
fiable must,  however,  altogether  depend  upon  the 
degree  of  self-government  accorded  by  the  sovereign 
power  to  the  particular  provinces.  There  could  be  no 
interference  beyond  these  limits  v/ithout  an  undue 
encroachment  upon  the  confederation  compact.  But, 
even  where  direct  and  authoritative  interposition 
would  be  objectionable  or  undesirable,  the  paternal 
]iosition  occupied  by  the  central  executive  towards 
the  provincial  governments  would  naturally  suggest 
the  propriety  of  intervening  by  advice  or  remonstrance, 
whenever  it  might  appear  that  the  mature,  experienced, 
and  impartial  counsels  of  the  supreme  government 
would  be  helpfid. 

In  like  manner,  the  local  ministries  and  parliaments 
in  the  self-governing  colonies  of  Great  Britain  —  even 
where  representative  institutions  of  the  most  liberal 
type  exist  —  not  infrequently  have  sought  the  advice 
of  the  imperial  government  to  help  them  in  the  solu- 
tion of  difficult  constitutional  questions  ;  and  this  advice 
is  rarely  refused,  even  when  the  question  is  one  that 
must  be  locally  decided.' 

See  ante,  pp.  120,  101. 


:li 


I    '!■ 


■'I 


m  i 


l\ 


\ 


! 


i 


Through 
tlie  federal 
secretary 
of  state. 


404       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

It  would  be  of  immense  advantage  to  all  subordinate 
provinces  under  a  federal  government,  now  or  hereafter 
to  be  established  in  any  part  of  the  empire,  if  the  local 
authorities  could  appeal,  with  similar  confidence  and 
assurance  of  receiving  wise  counsel  and  true  guidance, 
to  the  central  government,  whenever  a  necessity  for 
the  same  might  arise.  It  should,  therefore,  be  the  aim 
and  obligation  of  every  supreme  federal  government  to 
supply  to  its  subordinate  provinces  an  equal  measure 
of  intelligent  and  impartial  aid,  in  the  endeavour  to 
solve  the  problems  which  are  continually  arising  in  the 
working  of  free  institutions,  to  that  which  the  imperial 
government  paternally  accords  to  all  the  colonies  and 
dependencies  of  the  Crown. 

Such  a  function,  whether  it  be  discharged  for  the 
purposes  of  advice,  admonition,  or  restraint,  would,  by 
constitutional  analogy,  be  fittingly  entrusted  to  the 
secretary  of  state  of  the  federal  government,  who  is 
the  proper  channel  and  representative  to  the  subordi- 
nate provinces  of  the  central  and  supreme  authority. 

In  conformity  v.lth  the  constitutional  maxim  that 
"  advice  and  responsibility  must  go  hand  in  hand,"  *  it 
is  evident  that,  whenever  a  central  government  under- 
takes to  advise  or  to  control  a  provincial  government, 
the  central  executive  must  be  accountable  for  the  same 
to  the  central  parliament.  The  action  which  it  may  be 
expedient  for  a  central  parliament  to  take  under  such 
circumstances,  can  only  be  deter.nined  by  a  considera- 
tion of  the  respective  limits  assigned  by  imperial 
authority  to  provincial  and  federal  jurisdiction. 

The  federal  system  was  unknown  in  Great  Britain  or 
her  colonies,  until  it  was  introduced  and  applied  to  the 
colonies  in  British  North  America  by  the  imperial  act 
of  1867.    Since  then  an  attempt  has  been  made  to 


•  Todd,  Pari.  Govt.  vol.  i.  p.  53. 


CONTROL  IN  MATTERS  OF  AD^tllXlSTRATION. 


405 


establish  a  similar  system  in  South  Africa ;  but  this 
project  is,  for  the  present,  in  abeyance.  It  is  not  un- 
likely that  ere  long  the  several  Australian  colonies  will 
be  united  together  under  a  form  of  government  re- 
sembling that  which  has  been  successfully  applied  to 
the  older  colonies  upon  the  American  continent.  Mean- 
while, a  study  of  the  cases  that  have  arisen  under  the 
Canadian  constitution  cannot  but  be  serviceable  to  all 
who  are  interested  in  complex  questions  of  colonial 
government. 

In  1878,  a  much  controverted  case  arose  in  Canada, 
under  the  British  North  America  act  of  1867,  affecting 
the  relations  between  the  dominion  and  provincial  go- 
vernments, so  far  as  the  office  of  lieutenant-governor 
is  concerned.  Before  it  was  finally  disposed  of,  the 
counsel  of  the  imperial  government  was  requested,  in 
view  of  the  importance  of  the  decision  as  a  precedent 
for  future  guidance.  It  will  therefore  be  profitable  to 
call  attention  to  the  facts  of  this  case,  and  to  point  out 
their  Ijearing  upon  the  general  questions  now  under 
consideration. 

Ill  INIarch,  1878,  his  Honour  Liic  Letellier,  the  lieutenant- 
governor  of  the  province  of  Quebec,  in  the  exercise  of  his 
constitutional  discretion,  dismissed  his  ministers,  and  sum- 
moned otlier  advisers  to  his  counsels.  The  circumstances  under 
which  j\I.  Letellier  exercised  this  prerogative  of  the  Crown 
were  afterwards  reported  by  himself  to  the  governor-general. 

The  lieutenant-governor  alleged  that,  in  general,  the  re- 
conimendations  which  from  time  to  time  he  addressed  to  his 
ministers  upon  public  affairs  had  not  received  from  them  the 
consideration  which  was  due  to  suggestions  emanating  from 
the  representative  of  the  Crown. 

That  his  ministers  had  taken  steps  in  regard  both  to  ad- 
ministrative and  legislative  measures,  not  only  contrary  to 
his  representations,  but  even  without  previously  advising  him 
of  what  they  proposed  to  do.  This  was  notably  exhibited  in 
the  case  of  a  bill  which  contained  provisiv)riS  v/hereby  her 
Majesty's  subjects  would  have  been  deprived  of  their  un- 


Value  of 
Canadian 
prece- 
dents to 
other  fede- 
ral go- 
vern- 
ments. 


Office  of 

lieute- 

nant-tro- 

vernor  in 

relation  to 

dominion 

executive. 


Case  of 

I^ieute- 
nant-go- 
vernor 
Letellier. 


m 

"'1 

1 

i  ; 

;     i 

lir  ^ 

( 

■T- 

V 

;t  ' 

>l 

M- 

1,1 


:hU1 


1 

1     ^^! 

hi 

1  ! 


►.nar  '*^*'sr:;h*w<»M»*#r^«»;3!«*!" 


406       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


Letellier 
case. 


(  :i 


doubted  right  to  the  protection  of  the  courts  of  law,  in  mat- 
ters of  dispute  with  the  provincial  government. 

That  the  bill  in  question,  which  was  intended  to  substitute 
the  power  of  the  executive  for  that  of  the  judiciary,  in  de- 
termining certain  claims  under  a  railway  act,  had  been  intro- 
duced by  ministers  into  the  Legislative  Assembly,  and  passed 
through  both  houses,  without  the  previous  consent  of  the 
lieutenant-governor,  and  notwithstanding  his  strenuous  oppo- 
sition to  the  measure,  which  he  deemed  to  be  an  arbitrary  and 
illegal  infringement  of  vested  riglits. 

That  ministers  had,  he  believed,  yielded  to  a  corrupt  pres- 
sure, brought  to  bear  on  them  by  irregular  combinations 
of  members,  for  political  considerations,  to  promote  a  lavish 
expenditure  of  public  money  in  subsidizing  railways,  contrary 
to  the  advice  of  the  lieutenant-governor,  who  warned  them 
of  the  detrimental  result  to  the  province  of  such  objectionable 
influences. 

The  lieutenant-governor  further  alleged  that  he  had  re- 
peatedly remonstrated  with  his  ministers  before  proceeding 
to  extremity  with  them,  but  without  avail.  At  length  he 
was  compelled  to  declare  that  he  could  no  longer  repose  con- 
fidence in  them,  and  must  place  the  administration  of  the 
government  in  other  hands. 

After  the  dismissal  of  the  De  Boucherville  ministry,  the 
leader  of  the  opposition  in  the  Assembly,  M.  H.  G.  Joly,  was 
called  upon  to  form  a  new  administration.  He  succeeded  in 
tlie  attempt,  but  being  unable  to  carry  on  the  government 
witli  a  powerful  majority  against  him  in  the  Assembly  (his 
supply  bill  having  been  rejected  by  a  vote  of  thirty-two  to 
thirteen),  he  applied  for  a  dissolution  of  the  legislature,  which 
was  granted  by  the  lieutenant-governor. 

The  new  Assembly  afforded  M.  Joly  much  additional  sup- 
port ;  sufficient,  at  least,  to  enable  him  to  continue  in  office, 
and  to  proceed  with  the  business  of  legislation. 

The  act  of  the  lieutenant-governor,  in  dismissing  the  De 
Boucherville  administration,  gave  great  umbrage  to  the  poli- 
tical party  then  in  the  ascendant  in  Lower  Canada.  The 
ex-ministers  assigned  reasons  to  the  legislature  for  their  re- 
moval from  office,  which  reflected  injuriously  upon  the  motives 
and  conduct  of  tlie  lieutenant-governor.  M.  Letellier  re- 
garded these  explanations  as  being  partial  and  erroneous. 


to  substitute 


CONTROL  IN  MATTERS  OF  ADMINISTRATION. 


407 


He  therefore  forwarded  to  the  Earl  of  Dufferin,  the  governor-  Lctellier 
general,  a  memorandum,  containing  explanations  in  justifica-  ^^^^' 
tion  of  his  proceedings,  wherein  he  showed  that  the  action 
of  his  late  advisers  had  endangered  the  prerogatives  of  the 
Crown,  and  jeopardized  the  welfare  of  the  province. 

A  counter-statement,  in  rebuttal  and  refutation  of  certain 
alleged  inaccuracies  in  M.  Letellier's  memorandum,  was  after- 
wards forw.arded  to  the  governor-general  by  the  ex-premier, 
j\I.  De  Boucher ville.  And,  at  a  subsequent  period,  r  petition 
was  addressed  to  the  governor-general  in  council,  by  certain 
members  of  the  ex-ministry,  praying  for  the  dismissal  of  his 
Honour  the  lieutenant-governor  of  the  province  of  Quebec. 
This  petition,  with  an  answer  made  to  tlie  statements  therein 
by  M.  Letellier  and  a  rejoinder  by  the  petitioners,  were  trans- 
mitted, at  different  periods,  by  the  governor-genera]  without 
comment,  to  the  Senate  and  House  of  Commons  of  Canada 
then  in  session.* 

The  dominion  government  having  refrained  from  taking 
any  action  upon  these  petitions  of  complaint  against  the  lieu- 
tenant-governor, the  political  friends  of  the  ex-ministers  de- 
termined to  bring  the  matter  into  discussion  in  both  houses 
of  the  Canadian  parliament.  And  here  it  should  be  stated 
that  the  conservative  party,  which  had  espoused  the  cause 
of  M.  De  Boucherville,  was  in  a  majority  in  the  Senate,  but 
in  a  minority  in  the  House  of  Commons. 

On  April  11,  1878,  as  an  amendment  to  the  question  for 
going  into  committee  of  supply,  it  was  moved  by  Sir  John 
Macdonald  (then  leader  of  the  opposition),  seconded  by  Mr. 
Brooks,  to  resolve,  that  the  recent  dismissal  by  the  lieute- 
nant-governor of  the  province  of  Quebec  of  his  ministry  was, 
under  the  circumstances,  unwise,  and  subversive  of  the  posi- 
tion accorded  to  the  advisers  of  the  Crown  since  the  conces- 
sion of  the  principle  of  responsible  government  to  the  British 
North  American  colonies.  This  motion  led  to  a  protracted 
debate  ;  but,  on  April  15,  it  was  negatived  by  a  large  majority. 

On  the  same  day,  the  leader  of  tlie  opposition  in  the  Senate 
(Mr.,  now  Sir  Alexander  Campbell),  seconded  by  Senator 


*  See  Senate  and  Commons  Jour-  perial   Parliament     respectinof   the 

nals,  March  2(J  and  April  8,  1878  ;  ca^se  of     ]M.  L(>tellinr.      Conunous 

Canada  Sess.  Papt>rs,  1879,  no.  If);  Tapers,  1878-79,  C.  2145. 
Correspondence  laid  before  the  Iiu- 


iii;  ^ 


HI     il 


HI 


.  I 


-atk^  ~ 


;ri-~jr»-w 


Letelller 
case. 


408    PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

Bellerose,  moved  to  resolve,  that  the  couise  adopted  by  the 
lieutenant-governor  of  the  province  of  Quebec  towards  his 
late  ministry  was  at  variance  with  the  constitutional  princi- 
ples upon  wliich  responsible  government  should  be  conducted. 
This  was  met  by  an  amendment,  proposed  by  supporters  of 
the  Mackenzie  administration,  to  substitute  a  resolution  to 
declare  that,  under  the  rule  of  our  constitution,  the  federal  and 
the  provincial  governments,  each  in  their  own  sphere,  enjoy  re- 
sponsible government  equally,  separately,  and  independently, 
therefore,  under  existing  circumstances,  this  house  deems  it 
inexpedient  to  offer  any  opinion  on  the  recent  action  of  the 
lieutenant-governor  of  the  province  of  Quebec,  or  of  his  late 
ministers.  This  amendment  was  negatived  by  a  strict  party 
vote,  and  the  original  motion  agreed  to." 

The  two  houses  were  thus  divided  upon  the  merits  of  the 
case  ;  and  no  further  proceedings  were  taken  upon  it,  during 
that  session  of  the  dominion  parliament. 

Shortly  afterwards,  a  dissolution  of  the  dominion  parliament 
occurred,  the  existing  parliament  being  about  to  expire  by 
efHux  of  time.  T'  3  general  elections  went  against  the  party 
in  power ;  and  the  conservative  party,  headed  by  Sir  John  A. 
Macdonald,  were  triumphant.  The  Mackenzie  administration 
accordingly  resigned  office,  and  Sir  John  A.  Macdonald  was 
appointed  premier  of  the  incoming  ministry. 

The  new  parlianijnt  met  on  Feb.  13,  1879.  Ministers  took 
no  steps  in  furtherance  of  the  policy  they  had  advocated 
when  in  opposition  for  the  removal  of  Governor  Letellier. 
But  the  question  was  mooted  by  one  of  their  supporters,  who 
submitted  to  the  House  of  Commons  a  motion,  identical  in 
terms  with  that  proposed  in  the  previous  session  by  Sir  J.  A. 
Macdonald,  and  then  defeated  by  a  nuijority  of  thirty-two.  On 
March  14,  1879,  this  motion  was  agreed  to,  by  a  majority  of 
eighty-five. 

Whereupon,  Sir  John  A.  Macdonald  informed  the  governor- 
general  (the  Marquis  of  Lome),  that  in  the  opinion  of  minis- 
ters, after  the  resolution  of  the  senate  last  session,  and  that 
of  the  House  of  Commons  in  the  present  session,  "  the  use- 
fulness of  M.  Letellier,  as  lieutenant-governor  of  Quebec,  was 
gone,"  and  they  advised  his  removal  from   DflSce.     "  After 


"  Senate  Journals,  April  15  and  16,  1878. 


CONTROL  IN  MATTERS  0?  ADMINISTRATION 


409 


such  a  vote,"  they  urged,  "  it  must  be  obvious  that  he  cannot  Lotcllier 
either  with  profit  or  advantage  be  maintained  in  his  position."  ^^^^' 
"  Even  if  their  opinion  had  been  adverse  to  that  arrived  at  by 
Parliament,"  the  ministry  considered  that  tliey  were  '"  bound 
to  respect  that  decision,  and  to  act  upon  it  as  they  have  done 
by  advising  the  removal."  ^ 

The  governor-general  demurred  to  this  proposition.  He 
objected  to  the  policy  which  dictated  the  advice,  and  believed 
that  "  the  dismissal  of  the  lieutenant-governor  would  set  a 
dangerous  precedent."  In  this  dilemma,  at  the  suggestion  of 
the  premier  it  was  agreed  to  refer  the  matter  to  her  Majesty's 
government  for  their  consideration  and  instructions ;  inasmuch 
as  the  question  was  new,  and  the  decision  thereon  would  settle 
for  the  future  the  relations  between  the  dominion  and  provin- 
cial governments,  so  far  as  concerns  the  office  of  lieutenant- 
governor. 

In  the  words  of  the  governor-general,  which  were  assented 
to  by  Sir  J.  A.  Macdonald,  "  to  dismiss  the  lieutenant-gover- 
nor for  acts  for  which  M.  Joly  has  declared  himself  to  be  re- 
sponsible to  the  provincial  legislature,  is  a  new  exercise  of 
the  federal  power,  and  as  it  affects  the  interpretation  of  an 
imperial  act,  which  carefully  guards  provincial  interests,"  it 
was  expedient  that  an  authoritative  expression  of  the  views 
of  her  Majesty's  government  should  be  obtained,  with  refer- 
ence to  the  powers  given  by  the  British  North  America  act 
of  1867,  to  the  governor-general,  for  the  dismissal  of  a  lieute- 
nant-governor. 

In  support  of  the  advice  tendered  by  ministers  for  the  re- 
moval of  M.  Letellier,  the  premier  forwarded  a  memorandum 
on  the  subject  to  the  governor-general,  to  be  communicated 
to  the  secretary  of  state  for  the  colonies. 

When  M.  Letellier  learnt  that  the  question  had  been  re- 
ferred to  the  consideration  of  the  imperial  government,  he 
addressed  a  letter,  dated  April  18,  1G79,  to  the  dominion 
secretary  of  state,  containing  further  explanations  in  regard 
to  his  CO'  duct,  in  the  matter  of  complaint,  for  the  information 
of  the  governor-general.  Herein,  after  rehearsing  the  facts 
of  the  case,  he  submitted  an  order  in  council,  passed  by  the 
Quebec  government,  which  asserted  "that  the  action  of  the 


^  Commons  Tapers,  1878-79,  C.  2445,  pp.  104-108. 


I 


H 


m 


I 


■nfivfMaMBM^  if-^vf 


/[ 


LctelUcr 
case. 


410    TARLIAMi'NTARY  GOVERNMENT  IN  THE  COLONIES. 

lieutenant-governor  of  the  province  of  Quebec,  in  dismissing 
his  ministers  and  calling  others  in  their  stead,  is  a  purely  pro- 
vincial matter,  affecting  in  no  way  federal  interests,  and  is  not 
one  of  the  causes  contemplated  in  the  fifty-ninth  section  of  the 
British  North  America  act,  as  justifying  the  removal  of  [a] 
lieutenant-governor."  ^^ 

It  was  further  insisted  upon,  by  the  Quebec  government, 
that  "  the  maintenance  of  local  and  provincial  autonomy  and 
independence  imperiously  demands  that  questions  of  purely 
local  and  provincial  interest  should  not  be  subjected  to  the 
control  and  influence  of  the  federal  legislature  and  the  federal 
government."  ^ 

In  order  to  watch  the  proceedings  that  might  be  taken  by 
the  imperial  authorities  upon  this  case,  M.  Joly,  the  Quebec 
prime  minister,  proceeded  to  England  to  represent  the  lieute- 
nant-governor personally,  and  the  executive  government  of 
the  province  generally,  in  their  efforts  to  protect  the  auto- 
nomy of  Quebec.  The  dominion  ministry,  meanwhile,  had 
despatched  one  of  their  number  to  London,  to  represent  the 
case  on  tlieir  own  behalf. 

Upon  his  arrival  in  London,  the  Quebec  premier  suggested 
that  a  reference  of  the  question  to  the  judicial  committee  of 
the  privy  council  would  be  generally  acceptable  in  Canada,  on 
account  of  the  profound  respect  and  confidence  entertained  in 
Canada,  as  elsewhere,  for  the  decisions  of  that  tribunal.  The 
secretary  of  state  for  the  colonies,  however,  was  not  of 
opinion  that  this  course  was  advisable.  He  considered  the 
present  case  closely  analogous  to  that  of  the  New  Brunswick 
school  act ;  upon  which,  in  1872,  the  Canadian  House  of  Com- 
mons sought  to  obtain  the  opinion  of  the  judicial  committee. 
"  It  was  then  decided  that,  there  being  nothing  in  the  case 
which  gave  the  queen  in  council  any  jurisdiction  over  the  ques- 
tion, her  Majesty  could  not  with  propriety  be  advised  to  refer 
to  a  committee  of  the  privy  council  a  question  which  the  queen 
in  council  had  no  authority  to  determine,  and  on  which  the 
opinion  of  the  privy  council  would  not  be  binding  on  tlie  par- 
ties in  the  dominion  of  Canada."  y 


w  Commons  Papers,  1878-79,  C.  2445,  pp.  111-114. 

*  lh!d.  p.  124. 

y  Ibid.  p.  121.     And  see  ante,  p.  347. 


COLONIES. 

,  in  dismissing 
i  a  purely  pro- 
3sts,  and  is  not 
I  section  of  the 
emoval  of  [a] 

c  government, 
autonomy  and 
ons  of  purely 
bjected  to  the 
,nd  the  federal 

t  be  taken  by 
[y,  the  Quebec 
lent  the  lieute- 
^overnment  of 
tect  the  auto- 
lean while,  had 
)  represent  the 

nier  suggested 

committee  of 

in  Canada,  on 

entertained  in 

iribunal.     The 

•,  was   not  of 

3onsidered  the 

ew  Brunswick 

louse  of  Com- 

ial  committee. 

ig  in  the  case 

over  the  ques- 

Ivised  to  refer 

lich  the  queen 

on  which  the 

ng  on  the  par- 


I-IU. 


t  ^  I 


CONTROL  IN  MATTERS  OF  ADMINISTRATIS^. 


411 


Sir  M.  Hicks-Beach,  her  INIajesty's  secretary  of  state  for  the  Letellier 
colonies,  in  a  despatch  dated  July  3,  1879,  conveyed  to  the  '^^^*-'- 
Marquis  of  Lome  the  conclusions  of  her  Majesty's  govern- 
ment, upon  bio  request  for  instructions  in  regard  to  the  Letel- 
lier question. 

The  application  for  instructions,  in  this  very  exceptional 
case,  was  approved ;  altliougli,  as  a  rule,  whatever  affects  the 
internal  affairs  of  the  dominion  should  be  dealt  with  by  the 
government  and  parliament  of  Canada.  Bearing  in  mind  this 
rule,  the  imperial  government  refrained  from  expressing  any 
opinion  upon  the  merits  of  this  case,  and  declined  to  interfere 
with  the  exercise  of  the  powers  conferred  upon  the  governor- 
general,  by  the  British  North  America  act,  for  determining  the 
same. 

But,  in  view  of  the  importance  of  the  precedent  which  may 
be  established  by  the  decision  thereon,  her  jNIajesty's  govem- 
ment  would  not  withhold  their  opinion  on  the  abstract 
question  of  the  function  and  responsibilities  of  the  gover- 
nor-general, in  relation  to  the  lieutenant-governor  of  a  pro- 
vince under  the  imperial  statute. 

Accordingly,  the  despatch  proceeds  to  state  that  "  there 
can  be  no  doubt  that  the  lieutenant-governor  of  a  province  has 
an  unq'iestionable  constitutional  riglit  to  dismiss  his  ministers, 
if,  from  any  cause,  he  feels  it  incumbent  upon  him  to  do  so. 
In  the  exercise  of  this  right,  as  of  any  other  of  his  functions, 
he  should  of  course  maintain  the  impartiality  towards  rival 
political  parties  which  is  essential  to  the  proper  performance 
of  the  duties  of  his  office  ;  and,  for  any  action  he  may  take, 
he  is  (under  the  iBfty-ninth  section  of  the  British  NorUi  Ame- 
rica act)  directly  responsible  to  the  governor-general." 

In  deciding  whether  the  conduct  of  a  lieutenant-governor 
merits  removal  from  office,  the  governor-general — as  in  the 
exercise  of  other  powers  vested  in  him  by  the  imperial  statute 
—  must  act  "  by  Jind  with  the  advice  of  his  ministers." 

Though  the  position  of  a  governor-general  would  entitle  his 
opinion  on  the  subject  "  to  peculiar  weight,  yet  her  Majesty's 
government  do  not  find  any  thing  in  the  circumstances  which 
would  justify  him  in  departing  in  this  instance  from  the  gene- 
ral rule,  and  declining  to  follow  the  decided  and  sustained 
opinion  of  his  ministers,  who  are  responsible  for  tlie  peace  and 
good  government   of  the    dominion   to   the  parliament,  to 


ilil 


.  i 

i 


ii 


'• 


412       TARLLVMENTARY  GOVERNMENT  IN  THE  COLONIES. 


Lctcllicr 
cast*. 


which  (according  to  the  fifty-ninth  section  of  the  statute)  the 
cause  assigned  for  the  removal  of  a  lieutenant-governor  must 
be  communicated." 

On  the  other  hand,  the  secretary  of  state  advises  the 
governor-general  to  request  his  ministers  to  review  their  ac- 
tion in  this  case  ;  and  to  satisfy  themselves  whether,  after  all 
that  ha;-  passed,  it  is  "  necessary  for  the  advantage,  good 
government,  or  contentment  of  the  province,  that  so  serious  a 
step  should  be  taken  as  the  removal  of  a  lieutenant  governor 
from  office."  "  The  spirit  and  intention  "  of  tlic  imperial 
statute  clearly  require  tha.  tlie  tenure  of  this  high  office 
"  should,  as  a  rule,  endure  for  the  term  of  years  specifically 
mentioned  ;  and  that,  not  only  should  the  power  of  removal 
never  be  exercised  except  for  grave  cause,  but  that  the  fact 
that  the  political  opinions  of  a  lieutenant-governor  had  not 
been,  during  his  former  career,  in  accordance  with  those  held 
by  any  dominion  ministry  who  might  happen  to  succeed  to 
power  during  his  term  of  office,  would  afford  no  reason  for  its 


exercise. 


The  long  interval  which  had  unavoidably  elapsed  between 
the  mooting  of  this  complicated  question  and  its  final  settle- 
ment, miglit,  it  was  suggested,  be  useful,  not  only  in  affording 
time  for  its  thorough  comprehension,  but  also  in  permitting 
"  the  strong  feelings,  on  both  sides,  which  have  been  often 
too  bitterly  expressed,  to  subside."  ^ 

After  the  receipt  of  this  despatch,  the  governor-general,  on* 
July  14,  1879,  requested  his  ministers  to  reconsider  their 
advice,  in  view  of  the  remarks  contained  therein,  and  like- 
wise of  "  the  support  afforded  in  the  province  of  Quebec  to 
M.  Joly,  the  minister  who  is  by  constitutional  practice  re- 
sponsible for  the  action  of  the  lieutenant-governor." 

On  July  21,  Sir  J.  A.  Macdonald  reported  to  the  governor- 
general  that  the  cabinet,  "  having  fully  considered  the  despatch 
and  his  Excellency's  minute,  desire  to  state  that,  after  anxious 
consideration,  they  adhere  to  the  advice  previously  tendered 
to  him  for  the  removal  of  Lieutenant-Governor  Letellier." 

Upon  which,  by  order  in  council,  approved  by  the  governor- 
general  on  July  25,  it  was  resolved,  "  that  it  is  expedient  and 
necessary  that  Mr.  Letellier  should  be  removed  from  his  office 


*  Commons  Papers,  1878-79,  C.  2445,  pp.  127,  128. 


COLONIES. 

e  statute)  the 
Governor  must 

}  advises  the 
/iew  their  ac- 
ither,  after  all 
v^antage,  good 
at  so  serious  a 
nant  governor 
f  the  imperial 
lis  high  office 
I's  specifically 
er  of  removal 
,  that  the  fact 
iriior  had  not 
ith  those  held 
to  succeed  to 
>  reason  for  its 

ipsed  between 
its  final  settle- 
ly  in  affording 
in  permitting 
ve  been  often 

lor-general,  on 

consider  their 
ein,  and  like- 
of  Quebec  to 

al  practice  re- 

lor." 

I  the  governor- 
d  the  despatch 

;,  after  anxious 

ausly  tendered 
Letellier." 

r  the  governor- 
expedient  and 
from  his  office 

27,  128. 


CONTROL  IN  MATTERS  OF  ADMINISTRATION. 


413 


prime  ^^.C.;  ^^  f  ^. 


of  lieutenant-governor  of  Quebec  ;  "  and  that "  the  cause  to  be  Lotollier 
assigned  for  such  removal,  according  to  the  provisions  of  the  ^"'"'-  jj/-    ^ 

fifty-ninth  section  of  the  British  North  America  act,  1867,  is,  a     q,/v*^      ;    i/"' 
that  after  the  vote  of  the  House  of  Commons  during  last  ses-    ,  r  ^  (;  i         v^l/^ 
sion,  and  that  of  the  Senate  during  the  present  session, 
Letellier's  usefulness  as  a  lieutenant-governor  was  gone. 

On  the  following  day,  on  the  recommeudation  of  the 
minister,  an  order  in  council  was  passed,  and  approved  by  his^    [t^^^   )i 
Excellency  the  governor-general,  appointing  the  Hon.  Theo-  *      J^^"'  \r'V       '. 
dore  Robitaille,  lieutenant-governor  of  the  province  of  Quebec  .*■  j        v  '-  ^       a^*^ 
in  the  room  and  stead  of  the  Hon.  Luc  Letellier  de  St.  Just,  ^  \  l-^Ay*^'**^ '    f 
removed.*  ^  ^    '^  *-  (  '       €A 

The  foregoing  case  is  undoubtedly  one  of  considera-  itsimpor-  ^/^ 
ble  importance,  as  a  precedent.     It  furnishes  the  first  [frececfent. 
example  of  the  interposition  of  dominion  authority  for     ^    ., 
the  removal  of  a  provincial  lieutenant-govornor  from  5\  ''^^*  / 
office  before  the  expiration  of  his  ordinary  ter.:^.  of  ser-*     -' 
vice.     It  requires,  therefore,  to  be  carefully  and  dispas-  -*' 
sionately  examined,  lest  erroneous  conclusions  should 
be  hereafter  drawn,  from  the  action  taken  upon  this 
case  by  either  party  ;  and  lest  it  should  seem  to  justify 
dominion  interference  in  provincial  affairs  under  unwar- 
rantable circurii::tances. 

In  the  first  place,  it  is  indisputable  that  the  lieute-  m.  Lctei- 
nant-governor  of  Quebec  was  in  error  when  he  claimed  neous™ 
that,  as  the  representative  of  the  sovereign,  he  w^as  *'''o"- 
"  irresponsible  for  acts  performed  within  the  legitimate 
sphere  of  the  duties  prescribed  to  him  by  the  British 
North  America  act."  ^    If  this  were  so,  as  Sir  John  A.     » 
Macdonald  justly  remarks,  "  a  provincial  lieutenant- 
governor  would  be  the  only  practically  irresponsible 
official  in  Canada."  ^     A  lieutenant-governor  is  clearly  ^, 
responsible  to  the  authority  that  has  appointed  him,  and     U 
by  which  he  is  removable,  although  he  is  not  responsi- 
ble to  any  other  tribunal  for  his  conduct  in  office. 


I  i 


U-i:> 


•  Commons  Papers,  1878-79,  C  2445,  pp.  129-131. 
»  Ibid.  p.  114. 
«  Ibid.  p.  109. 


■Mmn 


414     rARLIAxMENTAllY  GOVERNMENT  IN  THE  COLONIES. 


f 


M.  .Toly's 
error. 


W 


Refuted 
by  Sir  J. 
A.  Mac- 
donald. 


Again,  we  cannot  approve  of  M.  Joly's  assumption 
that  the  framers  of  the  British  North  America  act  drew 
an  intentional  distinction  between  the  authority  that 
appoints  heutenant-governors,  and  the  authority  that  is 
competent  to  dismiss  them,  —  making  the  appointment 
to  proceed  from  ,the  governor-general  in  council,  and 
the  dismissal  to  be  the  act  of  the  governor  personally. 
The  advocates  of  this  theory  contend  that  the  distinction 
was  advisedly  made^  for  the  purpose  of  securing  to  lieu- 
tenant-governors a  position  of  permanence,  during  their 
five  years'  lease  of  office,  irrespective  of  the  changes  of 
party  government  at  Ottawa  within  that  period.''  But 
Sir  Jolin  A.  Macdonald  easily  refutes  this  argument,  as 
well  on  practical  grounds  as  upon  constitutional  princi- 
ple. He  points  to  the  undeniable  fact  that  all  acts  of 
government  must  equally  be  performed  under  the  advice 
of  responsible  ministers  wherever  the  British  Constitu- 
tion prevails,  whether  the  chief  executive  officer  is  in- 
dividually charged  with  the  same,  or  whether  his  council 
are  formally  associated  with  him  in  the  transaction." 

It  is  evident  that  the  tenure  of  office  of  a  lieutenant- 
governor  is  "  during  the  pleasure  of  the  governor-gene- 
ral," '  a  phrase  which  is  descriptive  of  a  tenure  different 
in  kind  from  that  of  one  who  holds  office  "  during  good 
behaviour."  It  confers  no  vested  right  upon  a  lieu- 
tenant-governor to  retain  his  office  for  any  number  of 
3'ears,  and  it  gives  a  wide  scope  for  the  exercise  of  dis- 
cretion on  the  part  of  the  removing  power. 

We  may,  therefore,  pass  by,  as  unworthy  of  notice, 
the  contention  that  the  governor-general  personally  has 
alone  the  power  of  dismissing  a  lieutenant-governor ; 
and  that  he  is  at  liberty,  in  the  exercise  of  this  preroga- 
tive, to  act  independently  of  his  constitutional  advisers. 


d  Commons  Papers,  1878-79,  C.  2445,  p.  118. 
e  [hid.  p.  109.     And  see  ante,  p.  341. 
f  15.  X.  A.  Act,  1867,  sec.  59. 


IT^I 


COLONIES. 


CONTROL  IN  MATTERS  OF  ADMINISTRATION. 


415 


till'  coloni- 
al secre- 
tary. 


Not  only  has  the  Cpnatlian  premier  exposed  the  fallacy  And  i)y 
of  this  argument,  but  her  Majesty's  secretary  of  state 
for  the  colonies  has  ratified  Sir  John  A.  Macdonald's 
interpretation  of  the  imperial  statute  in  this  particular. 

There  can,  tlien,  be  no  doubt  that  a  lieutenant- 
governor  is  directly  responsible  to  the  authority  by 
which  he  has  been  appointed,  namely,  the  governor- 
general  in  council,  and  that  he  is  removable  "  at  plea- 
sure "  by  that  body. 

On  the  other  hand,  the  position  of  a  lieutenant- 
governor,  under  the  British  North  America  act,  is  one 
which  renders  great  caution  and  forbearance  necessary 
in  the  exercise  of  this  authority. 

The  union  of  the  provinces  effected  by  that  statute  Provincial 
was  a  federal  union.     And  it  was  so  framed  as  to  pre-  S'go-* 
serve  intact  and  inviolate  the  local  rights  and  privileges  vtrnment. 
previously  assured  to  the  several  provinces,  so  far  as  is 
compatible  with  their  confederation. 

One  especial  privilege  conceded  to  the  colonies  in 
North  Ameruja  when  "responsible  government"  was 
established  therein  was  that  of  self-government  in  local 
affairs.  This  privilege  was  obtained  after  a  protracted 
political  struggle,  and  was  highly  prized. 

By  the  British  North  America  act  of  1867,  the  Crown 
transferred  to  the  central  dominion  government  and 
parliament  the  measure  of  control  previously  exercised 
by  the  mother  country  over  the  respective  provinces ; 
and  since  their  confederation  the  imperial  government 
has  declined  to  interfere  directly  in  questions  of  local 
concern  in  the  provinces.^'  But  this  concession  to  the 
federal  government  of  imperial  rights  over  the  pro- 
vinces simply  places  that  government  in  the  position 
towards  the  provincial  governments  heretofore  occupied 
by  the  Crown.     It  does  not  increase  or  diminish  the 


■ 

'I 


I. 


'  See  ante,  pp.  319,  342,  345. 


II 


\J 


■ 


tenant- 
governor. 


416     PARLIAMENTARY   GOVERNMENT  IN  THE  COLONIES. 

relative  powers  of  either  in  respect  to  local  affairs.  This 
principle  has  been  unreservedly  established  as  regards 
provincial  legislation.  It  is  well  understood  that  each 
province  retains  "  exclusive  "  rights  of  legislation  with- 
in its  assigned  jurisdiction,  that  may  not  be  interfered 
with  by  the  dominion  government,  save  only  when  do- 
minion interests  or  the  public  welfare  in  general  might 
be  injuriously  affected  by  such  legislation. 

T'  e  same  principle  applies  with  equal  force  to  acts 
of  administration.  The  spirit  and  intent  of  the  British 
North  America  act  equally  forbids  unnecessary  interfe- 
rence by  the  dominion  executive  with  provincial  rights 
in  all  matters  of  local  self-government. 
Constitu-         rpi^jg  explains  why  a  restraint  is  imposed  by  that 

tional  re-  ^  J  ^  _  i       ^  ./^ 

straintson  strJ-utc  upou  the  prerogative  right  of  dismissing  a 
of  a  lieu-    liG  Litcnant-govemor. 

Such  functionaries  cannot  be  removed  "  at  pleasure," 
as  freely  as  the  sovereign  is  at  liberty  to  remove  a 
colonial  governor.  The  act  secures  them  against  any 
such  arbitrary  exercise  of  the  prerogative.  They  are 
only  removable  within  five  years  of  their  appointment 
''  £c>^  <  ause  assigned,  which  shall  be  communicated  by 
mec'^ay:e  to  the  Senate  and  House  of  Commons  "  at  the 
earliest  possible  period. 

The  object  jf  this  proviso  is  manifestly  to  guard 
against  a  removal  for  insufficient  cause,  and  to  aflbrd  " 
guarantee  to  the  provinces  that  their  chief  executive 
officers  shall  not  be  removed  for  any  reason  that  would 
impair  or  infringe  upon  the  cherished  right  of  local 
self-government. 

But  what,  it  may  be  asked,  would  be  a  sufficient 
cause  for  such  a  proceeding? 

Undoubtedly,  if  a  lieutenant-governor  overstepped 
his  lawful  powers  he  would  be  properly  subject  to  dis- 
missal. 

Or  if  he  exercised  his  lawful  powers  in  an  improper 
and  partial  manner. 


W'l 


COLONIES. 

affairs.  This 
3d  as  regards 
od  that  each 
islation  with- 
be  interfered 
i\y  when  do- 
eneral  might 

force  to  acts 
)f  the  British 
ssary  interfe- 
vincial  rights 

Dsed  by  that 
dismissing   a 

at  pleasure," 
to  remove  a 
against  any 
B.  They  are 
appointment 
[lunicated  by 
ions  "  at  the 

:ly  to  guard 
d  to  aftbrd  " 
ef  executive 
n  that  would 
ght  of  local 

a  sufficient 

overstepped 
ibject  to  dis- 

an  improper 


CONTROL  IN  MATTERS  OF  ADMINISTRATION. 


417 


Dominion 
executive 
ini- 


0      '  U  iA 


But,  let  the  sufficient  cause  be  what  it  may,  it  is  clear 
that  the  responsibility  for  the  act  of  removal  devolves 
upon  the  governor-general  in  council;  and  that  the       I 
initiatory  step  to  that  end  should  proceed  from  thence. 

To  permit  the  initiative  in  such  a  momentous  pro 
ceeding  to  be  undertaken  by  either  house  of  parliament  should 
would  be  an  undue  interference  with  executive  respon-  duniissai^ 
sibility.     It  would  weaken  the  just  authority  of  the.^Cc-^^ 
Crown,  and  produce  a  result  for  which  no  one  could   //    ^'l^^/i 
be  held  actually  responsible.  A     ( 

Herein,  it  is  obvious  that  the  dominion  government 
was  at  fault  in  the  procedure  against  Governor  Le-    ^     ^ 
tellier. 

They  had  abstained,  as  a  government,  from  calling 
M.  Letellier  to  account.  And  when  the  two  houses  of 
parliament  had  passed  resolutions  calling  for  his  re- 
moval, the  premier  informed  the  governor-general  that, 
in  the  opinion  of  ministers,  "  it  was  not  at  all  neces- 
sary, in  order  to  justify  their  advice,  to  go  behind  the 
vote  of  parliament :  .  .  .  even  if  their  opinion  had  been 
adverse  to  that  arrived  at  by  parliament,  it  seems  clear 
that  they  are  bound  to  respect  that  decision,  and  to 
act  upon  it,  as  they  have  done,  by  advising  the  re- 
moval." " 

This  statement  involves  a  complete  abnegation  of 
ministerial  responsibility,  and  a  surrender  of  the  safe-     /^ 
guards  over  individual  rights  which  ministerial  respon- 
sibility is  intended  to  affi^rd. 

We  have  elsewhere  shown  that  "  any  direct  inter- 
ference by  resolution  of  parliament  in  the  details  of 
government  is  inconsistent  with  and  subversive  of  the 
kingly  authority,  and  is  a  departure  from  the  funda- 
mental principle  of  the  British  Constitution  which 
vests  all  executive  authority  in  the  sovereign,  while 


mm 

1)  :  -  '  1 

•  ''1  '  ,1 
^'         'it 

1.        i } 

ft  ■    '(    '' 

m  i 

'  -  i  t 

''  ii 

■  li 

I '(in 

S  •  1  ;  i 


'^ill 


u 


»>  Commons  Papers,  1878-79,  C.  2415,  p.  108. 

27 


i 


rn 


i 


418       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

it  ensures  complete  responsibility  for  the  exercise  of 
every  act  of  sovereignty."  And  that  "  no  resolution 
of  either  house  of  parliament  which  attempts  to  adju- 
dicate in  any  case  that  is  within  the  province  of  the 
government  to  determine  has  of  itself  any  force  or 
effect." ' 

Even  where  parliament  has  been  invested  by  statute 
with  the  direct  right  of  initiating  a  criminatory  pro- 
ceeding for  the  removal  of  a  high  public  functionary, 
as  where  a  judge  is  declared  to  be  removable  upon  an 
address  from  the  two  houses  of  the  Imperial  Parlia- 
ment, constitutional  practice  requires  that,  in  any  such 
address,  "  the  acts  of  misconduct  which  have  occasioned 
the  adoption  thereof  ought  to  be  recapitulated,  in  order 
to  enable  the  sovereign  to  exercise  a  constitutional  dis- 
cretion in  acting  upon  the  advice  of  parliament."  ^ 

This  wholesome  rule  is  imperatively  insisted  upon 
by  the  Crown  in  all  addresses  from  colonial  legisla- 
tures for  the  removal  of  judges  appointed  under  a 
similar  parliamentary  tenure.  In  cases  where  it  has 
been  disregarded,  the  Crown  has  refused  to  give  effect 
to  the  address,  though  passed  by  a  colony  enjoying 
"responsible  government."  And  this  because  "in  dis- 
missing a  judge,  in  compliance  with  addresses  from  a 
local  legislature  and  in  conformity  with  law,  the  queen 
is  not  performing  a  mere  ministerial  act,  but  adopting 
a  grave  responsibility,  which  her  Majesty  cannot  be 
advised  to  incur  without  satisfactory  evidence  that  the 
dismissal  is  proper."'' 

The  resolutions  passed  by  the  Senate  and  House  of 
Commons  of  Canada,  in  1878  and  1879,  substantially 
agree  in  declaring  that  the  dismissal  by  the  lieutenant- 


'  Todd,    rail, 
p.  257. 

J  Ilnd.  vol.  ii.  p.  744. 
k  Ibid.  vol.  ii.  p.  703 


Govt.     vol.     i.    Sir  F.  Rogers'    memorandum,    in 
Comnious  Papers,  1870,  vol.  xlix. 
p.  440. 
And  see 


CONTROL  IN  MATTERS  OF  ADMINISTRATION. 


419 


governor  of  Quebec  of  his  ministers,  on  March  2,  1878, 
was  under  the  circumstances  unwise,  and  subversive 
of  the  constitutional  principles  upon  which  responsible 
government  should  be  conducted. 

This  assertion  is,  in  itself,  extremely  vague  and  am- 
biguous. It  does  not  exphiin  why  the  dismissal  was 
"  unwise/'  or  in  what  respect  it  was  "  subversive  of  the 
position  of  ministers  under  responsible  government." 

We  are,  therefore,  compelled  to  conclude  that  the 
action  taken  for  the  removal  of  Lieutenant-Governor 
Letellier  was  at  variance  with  constitutional  law  and 
precedent,  as  well  as  contrary  to  the  spirit  and  intent 
of  the  British  North  America  act ;  inasmuch  as  it  was 
initiated  by  parliament  and  not  by  the  executive  go- 
vernment, and  did  not  set  forth  the  particular  acts  of 
misconduct  for  which  his  removal  was  deemed  to  be 
necessary. 

If  we  go  behind  the  formal  resolutions  of  parliament, 
and  inquire  into  the  reasons  urged  by  the  advocates  of 
these  resolutions  for  their  adoption,  we  find  it  alleged, 
as  a  primary  motive  to  justify  the  dismissal  of  the  lieu- 
tenant-governor, that,  by  his  dismissal  of  his  ministers 
at  a  time  when  they  were  able  to  command  a  majority  in 
parliament,  he  had  exercised  an  arbitrary  and  obsolete 
power,  which  was  incompatible  with  the  recognition  of 
responsible  government.  The  leader  of  the  opposition 
in  the  Commons,  in  advocating  the  adoption  of  the 
resolution  against  Governor  Letellier,  said  that,  "  in 
England,  the  power  of  dismissal  of  a  gcvernment  hav- 
ing the  confidence  of  parliament  is  gone  for  ever,  and 
that,  if  it  is  gone  there,  it  ought  never  to  have  been 
attempted  to  be  introduced  in  a  colony  under  the  British 
Crown." ' 

It  is  scarcely  necessary  to  point  out,  to  any  attentive 
reader  of  this  treatise,  that  this  rash  and  ill-considered 

>  Canadian  Hansard,  April  11, 1878,  p.  1894. 


Action  of 
doiiiinioa 

gOVlTIl- 

inent  in 
Letellier 
case  con- 
sidered. 


n 


^^ 


■■    '        If 


420       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


'H 


■J. 

r  A 


declaration  has  no  warrant,  either  in  theory  or  practice. 
In  our  preliminary  chapter,  we  have  described  the  pre- 
cise powers  of  the  sovereign  in  relation  to  her  ministers 
and  parliament,  as  the  same  have  been  defined  by  emi- 
nent British  statesmen  of  our  own  day.  The  reserved 
powers  of  the  Crown,  which  like  all  prerogatives  are 
held  in  trust  for  the  benefit  of  the  people,  are  therein 
clearly  shown  to  include  the  right  of  appealing,  at  all 
times,  from  a  ministry,  strong  (it  may  be)  in  the  pos- 
session of  the  confidence  of  the  existing  parliament,  to 
the  electordte,  whose  decisio  must  ultimately  prevail. 
Meanwhile,  the  Crown  is  consbxtutionally  competent  to 
dismiss  any  ministry  in  whom  the  sovereign  is  no 
longer  able  to  confide,  and  invite  the  assistance  of  other 
ministers  who  are  willing  to  be  responsible  for  this  act 
of  f/he  Crown."'  To  deny  to  the  sovereij_,n  the  posses- 
sion of  these  reserved  powers  —  however  seldom  it  may 
be  needful  to  exercise  them  —  would  be,  in  effect,  to 
destroy  the  strength  and  vitality  of  the  monarchy. 

And  this  is  equally  true  of  the  powers  of  a  governor 
in  the  colonies  of  Great  Britain. 

The  right  of  a  governor,  or  lieutenant-governor,  to 

^^  r^/(flismiss  his  ministers,  when  he  has  ceased  to  have  confi- 

l  '/jfCw'dence  in  them,  is  undeniable ;  and  that  right  is  not  im- 

'     Ir/    / '      " 


Constitu- 
tional 
powers  of 
a  gover- 
nor. 


Ji 


I 


paired  by  the  fact  of  their  being  able  to  command  a 
majority  in  the  representative  chamber.  This  principle 
has  been  repeatedly  affirmed  in  colonies  under  respon- 
sible government,"  and  it  is  now  placed  beyond  the 
rejch  of  cavil  by  the  corroborative  testimony  of  her 
Majesty's  secretary  of  state  for  the  colonies  in  the  Letel- 
lier  case,  that  "  there  can  be  no  doubt  that  [the  lieu- 
tenant-governor of  a  provmce]  has  an  unquestionable 
constitutional  right  to  dismiss  his  ministers  if,  from  any 
cause,  he  feels  it  incumbent  upon  him  to  do  so."  ° 


"Seemi/e,  pp.  13,  20. 
"  See  post^  p.  432,  el  seq. 


"  See  ante,  p.  411. 


COLONIES. 

y  or  practice, 
ibed  the  pre- 
her  ministers 
ined  by  emi- 
The  reserved 
rogatives  are 
3,  are  therein 
)ealing,  at  all 
)  in  the  pos- 
>arliament,  to 
ately  prevail, 
competent  to 
ereign  is  no 
ance  of  other 
R  for  this  act 
,n  the  posses- 
eldom  it  may 
!,  in  effect,  to 
onarchy. 
)f  a  governor 

^-governor,  to 
o  have  confi- 
sht  is  not  im- 

command  a 
This  principle 
inder  respon- 

beyond  the 
mony  of  her 
3  in  the  Letel- 
hat  [the  lieu- 
iquestionable 
s  if,  from  any 
io  so."  ° 

11. 


CONTROL  IN  MATTERS  OF  ADMINISTRATION. 


421 


This  abstract  right  being  admitted,  we  may  go  further 
and  declare  that  it  is  the  bounden  duty  of  a  governor 
to  dismiss  his  ministers,  if  he  believes  their  policy  to  bo 
injurious  to  the  public  interests,  or  their  conduct  to  be 
such,  in  their  official  capacity,  that  he  can  no  longer 
act  with  them  harmoniously  for  the  public  good.  But 
before  a  governor  proceeds  to  this  extremity,  at  least 
towards  a  ministry  having  the  confidence  of  the  Assem- 
bly, he  should  be  assured  that  he  can  replace  them  by 
others,  who  will  be  acceptable  to  the  country  and  to  the 
Assembly,  as  well  as  to  himself,  and  who  will  be  prepared 
to  assume  full  resnonsibility  for  his  act  in  effecting  the 
change  of  government. 

By  a  dissolution  of  the  Assembly,  conseq  lent  upon  a 
change  of  ministry,  this  question  is  broight  directly 
under  the  review  of  tne  constituencies. 

In  the  Letellier  case,  the  province  of  Quebec  —  which 
was  the  only  parf,  of  the  dominion  directly  interested 
in  the  wisdom  of  the  lieutenant-governor's  act  in  the 
dismissal  of  his  ministers  —  ratified  the  same  by  the 
support  which  they  afforded  to  M.  Joly,  the  minister 
who  became  constitutionally  responsible  for  the  action 
of  the  lieutenant-governor. 

To  revert  for  a  moment  to  the  votes  of  censure  against 
Governor  Letellier,  which  we  have  characterized  as 
"  vague  and  ambiguous."  It  is  noticeable  that  these 
votes,  whenever  they  were  proposed,  a,nd  whether  they  question 
were  negatived  or  affirmed,  were  invariably  decided  as 
strict  party  questions.  This  fact  leads  us  to  object,  still 
further,  to  the  proceedings  in  this  case,  and  to  deprecate 
any  reliance  upon  it,  as  a  precedent  for  fi-  ther  guidance 

Such  questions  should  always  be  determined  upon 
broad  grounds  of  justice  and  of  public  policy,  wholly 
irrespective  of  party  proclivities.  While  it  may  be  un- 
necessary that  a  governor  should  be  pointedly  charged 
with  gross  moral  or  political  misdeeds,  and  while  the 


Conduct 
of  a  lieu- 
tenant-go- 
vernor not 
a  party 

1 1 ; 


luL     '* 


ri  \ 


I', 


IJi^^^w^w^i^Tr'"*^  ■  ■  iHT^  i ;  1 :  ■! '  ^«»^  < .  rt v  w  w»rf' ^ 


ii 


I  i 


I     I 


AllpRod 
niiscon- 
diu't 

slioiiM  bo 
stated  and 
proved. 


1/ 


422       PARLIAMENTARY  GOVERNME>tT  IN  THE  COLONIES. 

removal  of  a  governor  may  undoubtedly  be  advisable 
on  less  personal  considerations,  yet  there  should  be  at 
least  the  security  against  political  oppression  which  is 
afforded  by  insisting  that  a  vote  in  condemnation  ought 
not  to  be  affirmed  or  rejected  upon  strict  party  lines. 

It  may  be  said,  however,  that  the  unanimous  defence 
of  M.  Letellier  by  his  own  political  friends  was  in  itself 
a  presumption  that  he  had  been  unduly  influenced  by 
party  bias  in  his  official  conduct,  instead  of  uniformly 
exhibiting  the  neutrality  which  is  essential  to  the  posi- 
tion of  a  constitutional  governor.  And  Sir  John  A. 
Macdonald  in  his  memorandum  on  the  case,  presented 
to  the  governor-general  after  the  last  adverse  vote  in 
the  House  of  Commons  against  Governor  Letellier, 
says  that  his  removal  would  be  "  a  warning  to  all  future 
lieutenant-governors  to  exercise  their  powers  as  such 
with  the  strictest  impartiality.  As  M.  Letellier  has 
been  the  first,  in  the  case  of  his  removal,  he  will  proba- 
bly be  the  last  partisan  lieutenant-governor,  and  all 
future  trouble  from  that  source  may  be  considered  as 
at  an  end."  *" 

If  this  had  been  M.  Letellier's  offence,  whv  was  not 
the  charge  of  partiality  and  political  preferences  dis- 
tinctly formulated  against  him,  and  his  sentence  of 
dismissal  based  upon  proof  of  the  same  ?  Such  proof, 
if  it  existed,  could  not  have  been  difficult  to  procure, 
and  for  the  credit  of  the  country,  as  well  as  in  view  of 
the  importance  of  establishing  a  great  constitutional 
precedent  upon  an  adequate  and  unimpeachable  founda- 
tion, it  should  have  been  adduced  on  this  occasion,  and 
the  order  in  council  for  M.  Letellier's  removal  predi- 
cated upon  it. 

Instead  of  this,  the  order  in  council,  equally  with  the 
resolutions  upon  which  it  was  professedly  founded,  was 


P  Commons  Papers,  1878-79,  C.  2445,  p.  110. 


COLONIES. 

be  advisable 
should  be  at 
jion  which  is 
nation  ought 
arty  lines, 
nous  defence 
was  in  itself 
fifluenced  by 
of  uniformly 
I  to  the  posi- 
Sir  John  A. 
se,  presented 
verse  vote  in 
lor  Letellier, 
J  to  all  future 
wers  as  such 
Letellier   has 
le  will  proba- 
rnor,  and   all 
considered  as 

whv  was  not 

ft/ 

ferences  dis- 
sentence  of 
Such  proof, 
t  to  procure, 
as  in  view  of 
constitutional 
ihable  found a- 
occasion,  and 
emoval  predi- 

lally  with  the 
founded,  was 

blO. 


CONTROL  IN  MATTERS  OF  ADMINISTRATION. 


423 


vague  and  indeterminate.     In  effect  it  was   a  mere 
assertion  that,  in  the  opinion  of  the  political  allies  of 
the  dismissed  ministers  and  of  the  political  opponents 
of  those  who  had  been  placed  in  power  by  the  act  of        *' 
the  lieutenant-governor,  "  his  usefulness  was  gone  ! " 

It  is  true  that  a  vote  of  want  of  confidence  in  an 
existing  administration  may  properly  be  passed  in 
either  house  of  parliament,  without  it  being  necessary 
to  assign  any  reasons  for  the  same.**  But  votes  of  this 
description  are  essentially  political,  and  are  always 
carried  by  party  majorities.  They  express  the  general 
feelings  of  those  who  support  them,  whilst  the  particu- 
lar reasons  which  influence  the  majority  of  members 
may  materially  diifer. 

But  it  is  contrary  to  the  first  principles  of  justice, 
and  in  opposition  to  the  established  usage  of  parliament, 
to  entertain  criminative  complaints  against  individuals 
except  for  cause  assigned,  which  cause  should  be  the 
assured  warrant  of  its  own  sufficiency,  upon  proof  of 
the  complaint  being  substantiated.' 

Apart  from  all  personal  considerations,  and  aside 
from  the  question  whether  M.  Letellier's  conduct  was 
uniformly  discreet  and  unobjectionable,  there  is  another 
a  pect  in  which  this  case  must  be  examined. 

Bearing  in  mind  the  importance  in  our  confederate  Dominion 
system  of  preserving  intact  provincial  rights,  and  the  utcnier 
obvious  peril  of  any  undue  or  arbitrary  interference  tcrTcmu'" 
therewith  by  the  federal  government,  we  must  inquire  with  local 
whether  the  action  of  the  lieutenant-governor  in  dis- 
missing  his  ministers  was  so  manifestly  unwise  and 
unnecessary  as  to  justify  the  interposition  of  dominion 
authority  for  its  condemnation. 

It  is  notorious  that,  if  the  forms  of  the  house  had 
permitted,  the  majority  of  the  House  of  Commons  who 


0  See  Todd,  Pail.  Govt.  vol.  ii.  p.  390. 


'  Ibid.  vol.  i.  p.  354. 


i 


''1 
\4 


i! 


|iii  i 


''  tl 


424       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

negatived  the  motion  of  censure  against  Governor  Le- 
tellier  on  April  11,  1878,  would  have  directly  asserted, 
in  bar  of  this  proposition,  the  undeniable  principle  of 
non-intervention  by  the  federal  government  in  a  matter 
of  provincial  concern."*  But  the  motion  was  offered  as 
an  amendment  upon  going  into  committee  of  supply, 
when  by  parliamentary  usage  no  further  amendment  is 
allowable ;  otherwise,  had  it  been  possible  to  raise  a 
distinct  issue  upon  this  principle,  it  would  have  been 
difficult  and  injudicious  for  any  Canadian  statesman  to. 
have  committed  himself  to  an  open  repudiation  of  it. 

In  the  Senate,  however,  no  such  hindrance  existed. 
The  minority  in  that  chamber  were  of  the  party  of  the 
majority  in  the  Commons.  They,  therefore,  failed  to 
prevent  the  passing  of  the  resolution  censuring  the 
lieutenant-governor.  But  they  placed  on  record  their 
reasons  for  objecting  to  the  vote  by  an  amendment 
which  declared  that,  under  the  rule  of  our  constitution, 
the  federal  and  the  provinci.il  governments,  each  in 
their  own  sphere,  enjoy  responsible  government  equally, 
separately,  and  independently  ;  therefore,  under  exist- 
ing circumstances,  this  house  deems  it  inexpedient  to 
offer  any  opinion  on  the  recent  action  of  the  lieutenant- 
governor  of  the  province  of  Quebec  or  of  his  late 
ministers.' 

This  view  of  the  case  was  consistent  and  statesman- 
like. It  did  not  ignore  the  propriety  of  a  dominion 
secretary  of  state  addressing  words  of  caution  and 
advice  to  a  lieutenant-governor,  whenever  it  might 
appear  suitable  and  expedient.  But  it  deprecated  co- 
ercive interference,  in  any  matter  plainly  and  exclu- 
sively within  the  domain  of  provincial  rights. 

If  any  just  cause  of  offence  or  complaint  had  arisen 


■  jM.  Jolv's  letter  to  the  colonial  secretary  of  May  22,  1879,  Cominons 
Papers,  1878-79,  C.  2445,  p.  122. 
♦   See  ante,  p.  408. 


!>> 


;OLONIES. 

rovernor  Le- 

tly  asserted, 
principle  of 
j  in  a  matter 
as  offered  as 
e  of  supply, 
[lendinent  is 
3  to  raise  a 
[  have  been 
itatesman  to 
tion  of  it. 
mce  existed, 
party  of  the 
[•e,  failed  to 
nsuring  the 
record  their 
amendment 
constitution, 
its,  each  in 
lent  equally, 
under  exist- 
xpedient  to 
lieutenantr 
of  his  late 

statesman- 
a  dominion 
jaution  and 
ir  it  might 
Drecated  co- 

and  exclu- 
ts. 

had  arisen 

1879,  Commons 


CONTROL  IN  MATTERS  OF  ADMINISTRATION. 


425 


out  of  the  conduct  of  Lieutenant-Governor  Letellier 
towards  his  late  ministers,  the  Legislative  Assembly 
of  the  province  were  competent  to  aflbrd  redress. 
The  Joly  administration,  which  succeeded  to  office, 
thereby  assumed  entire  responsibility  for  the  act  of 
the  lieutenant-governor,  in  dismissing  their  predeces- 
If  only  that  ministry  had  been  compelled  to  re- 


sors. 


sign. 


•  either  by  the  vote  of  the  Assembly  or  as  the 
result  of  an  appeal  to  the  people,  —  the  governor  must 
have  recalled  his  late  advisers.  But,  by  the  dissolution 
of  the  legislature  which  ensued,  the  electoral  body  of 
the  province  ratified  the  action  of  M.  Letellier,  and 
upheld  him  in  the  exercise  of  his  lawful  prerogative. 

We  are  free  to  admit  that  the  responsibility  which,  Lieute- 
under  the  British   North  America   act,  a   lieutenant-  vmio^s 
governor   incurs   to   the   governor-general   in  couacil  bfe°o"(io- 
renders  him  amenable  to  the  dominion  government  for  ">>»>«"  go- 

'-'  vcrnment. 

his  conduct  in  office  ;  and  that,  upon  all  needful  occa- 
sions, that  government  may  interpose,  either  to  correct 
irregularities,  to  counsel  in  emergencies,  or,  if  necessary, 
to  remove  an  incompetent  or  untrustworthy  governor, 
before  the  expiration  of  his  ordinary  term  of  service. 

But,  in  the  discharge  of  this  duty,  in  a  system  so 
complex  and  delicate  as  that  of  the  Canadian  confede- 
ration, great  caution  and  forbearance  must  be  observed, 
so  as  to  avoid  the  suspicion  of  party  influences,  or  of  a 
disposition  to  encroach  upon  provincial  rights  of  self- 
government. 

An  officer  of  the  eminent  position  and  responsibility        ,    ,, 
of  a  lieutenant-governor  should  be  placed  beyond  the  f^ '    -  i  (.< 
reach  of  party  strife.     His  own  reputation  as  a  public' 
man  will  always  depend  upon  his  unswerving  impar^^ 
tiality  and  entire  freedom  from  party  bias.     But  he 
ought  not  to  be  exposed  to  political  assaults  for   his 
official  conduct.     And  it  should  not  be  in  the  power 
of  a  defeated  minority  in  his  own  province  to  assail 


(,ii 


if  t 


1 1-*^ 


5s' 


But  not  to 
be  re- 
moved on 
party 
grounds. 


426       rAKLIAMENTATtY  GOVERNMENT  IN  THE  COLONIES. 

a  lieutenant-governor  or  his  responsible  advisers  by 
appealing  against  them,  on  party  grounds,  to  a  sym- 
pathizing majority  in  the  dominion  parliament. 

Every  individujil  in  the  community  is  interested  in 
sustaining  the  office  of  lieutenant-governor,  and  in  se- 
curing for  its  occupant  an  independent  and  non- 
political  tenure.  It  is,  therefor^^  clear  that  the  "  cause 
assigned "  for  the  removal  of  a  lieutenant-governor 
should  be  wholly  irrespective  of  party  considerations 
or  of  political  predilections,  and  should  be  sufficiently 
weighty  and  unequivocal  to  command  the  suffi^ages  of 
all  parties,  in  the  event  of  an  expression  of  the  opinion 
of  the  dominion  parliament  being  invited  upon  such  an 
act. 

The  law  which  prescribes  that  notification  of  the 
order  in  council  for  the  removal  from  office  of  a  lieu- 
tenant-governor, and  of  the  cause  thereof,  shall  be 
communicated,  with  as  little  delay  as  possible,  to  the 
Senate  and  House  of  Connnons  of  the  dominion  un- 
doubtedly empowers  either  house  to  express  its  opi 
nion  or  to  tender  advice  to  the  governor-general,  not 
merely  in  reference  to  such  removal,  but  also  upon  any 
question  that  may  appropriately  arise  out  of  the  appoint- 
ment of  a  lieutenant-governor,  or  in  regard  to  his  exe- 
cution of  his  trust. 

But,  when  we  note  the  jealous  care  which  is  appa- 
rent throughout  the  British  North  America  act  to 
cetine  and  regidate  the  exercise  of  the  "exclusive 
powers "  assigned  by  that  statute  to  the  provincial 
governments,  —  whether  those  powers  appertain  to  the 
executive  or  to  the  legislature,  —  it  is  manifest  that 
it  was  the  intention  of  the  Imperial  Parliament  to 
guard  from  invasion  all  rights  and  powers  exclusively 
conferred  upon  the  provincial  authorities,  and  to  provide 
that  the  reserved  right  of  interference  therewith  by  the 
dominion  executive  or  parliament  should  not  be  exer- 


OLONIES. 

advisers  by 
(,  to  a  sym- 
3nt. 

itercsted  in 

,  and  in  se- 

and    non- 

the  "  cause 
,nt-govcrnor 
iisiderations 

sufficiently 
suffrages  of 

the  opinion 
pon  such  an 

ition  of  the 
e  of  a  lieu- 
of,  shall  be 
?ible,  to  the 
)minion  un- 
ress  its  opi 
general,  not 
50  upon  any 
the  appoint- 
to  his  exe- 

ich  is  appa- 

ica   act    to 

"  exclusive 

3  provincial 

rtain  to  the 

anifest  that 

rl lament  to 

exclusively 

d  to  provide 

'with  by  the 

ot  be  exer- 


CONTROL  IN  MATTERS  OF  ADMINISTRATION. 


427 


cised  in  the  interests  of  any  political  party,  or  so  as  to 
impair  the  principle  of  local  self-government.  Prior 
to  confederation,  this  principle  was  earnestly  and  suc- 
cessfully contended  for,  as  a  restraint  upon  undue  inter- 
ference by  the  imperial  authorities  in  matters  of  local 
concern.  It  is  no  less  essential  now,  when  the  diverse 
interests  of  separate  provinces,  heretofore  independent 
of  each  other,  require  to  be  harmoniously  combined, — 
without  infringing  upon  the  freedom  of  any  govern- 
ment within  the  sphere  of  its  constitutional  powers, — 
so  as  to  ensure  unity  and  co-operation  for  the  common 
good. 

Hence,  we  conclude  that  the  reserved  right  of  the 
dominion  government  to  remove  a  provincial  lieutenant- 
governor  from  office  should  only  be  used  upon  grave 
emergencies,  —  so  obviously  irrespective  of  party  con- 
siderations as  to  secure  the  consent  of  all  impartial 
statesmen, — and  moreover  when  it  is  clear  that  the 
removal  can  be  effected  without  detriment  to  the  prin- 
ciple of  local  self-government. 

The   abstract  right  of  deliberation,  and   of  conse-  Action  by 
quent  action  thereupon,  which  is  undeniably  possessed  pa'di"-'"" 
by  the  two  houses  of  the  dominion  parliament,  upon  "I.oi\n"",ji 
all  n\atters  which  affect  or  concern  the  welfare  of  the  questions. 
Canadian  people,  is  likewise  subject  to  limitation  and 
restraint,  by  the  constitutional  law  of  the  confederation. 
And  it  is  equally  incumbent  upon  the  dominion  par- 
liament, as  it  is  upon  the  governor-general  in  council 
and  upon  the  governor-general  in  his  capacity  of  an 
imperial  officer,  representing  in  Canada  the  authority 
of  the  Crown,  to  respect  and  uphold  the  federal  rights, 
secured  to  the  several  provinces  by  the  British  North 
America  act ;  and  to  abstain  from  encroaching  upon  the 
same,  and  from  any  undue  interference  therewith." 

»  See  Earl  of  Dufferin's  despatch  15,  1873,  p.  16.  (Canada  Common.s 
to  the  colonial  secretary,  of  Aug.    Journal,  vol.  vii.  p.  27.)     Earl  of 


'/ 


(.  ^ 


I 


■\  L 


m 


i     i'. 


^i 


ifi   ■ 


428       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

Free  discussion  in  the  parliament  of  the  dominion, 
upon  all  Canadian  questions,  is  a  constitutional  and 
indisputable  privilege,  the  exercise  of  which  may  be 
oftentimes  productive  of  a  good  understanding  between 
conflicting  parties,  even  in  regard  to  questions  which 
are  undeniably  of  provincial  concern.  But  the  houses 
of  parliament  ought  to  refrain  from  any  overt  acts,  and 
even  from  the  formal  enunciation  of  any  opinion,  in 
respect  to  matters  which  do  not  come  within  the  sphere 
of  their  jurisdiction  as  a  federal  legislature.  It  is  to 
their  cautious  and  timely  forbearance,  in  deliberation 
and  action,  that  the  Imperial  Houses  of  Lords  and  Com- 
mons are  mainly  indebted  for  the  weight  and  influence 
which  are  justly  attributed  to  their  debates,  upon  ques- 
tions which  do  not  immediately  affect  British  interests, 
and  where  their  principal  aim  is  to  guide  and  enlighten 
public  opinion  in  other  countries,  without  assuming  a 
right  to  dictate,  or  to  interfere  with  the  absolute  free- 
dom of  independent  powers/ 


Carnarvon,  Hans.  Deb.  vol.  clxxxv.         "  See  Todd,  Pari.  Govt.  vol.  i.  p. 
p.    503.      New  Brunswick  School    619,  vol.  ii.  p.  730. 
case,  ante,  p.  346. 


'^1 


CHAPTER  IV. 


Govt.  vol.  i.p. 


PART  III. 

LOCAL  SELF-GOVERNMENT  IN  THE  COLONIES. 

a.   Colonial  rightB  of  self-government  in  local  affairs^  and  the 
position  of  a  governor  in  relation  thereto. 

"  Responsible  government "  was  avowedly  introduced  introduc- 
into  the  colonies  of  Great  Britain  for  the  purpose  of  sponsibiT 
reproducing  in  them  a  system  of  local  self-government,  ^"^^n""' 
akin  to  that  which  prevails  in  the  mother  country,  and 
to  relieve  the  colonies  from  imperial  interference  in 
their  domestic  or  internal  concerns. 

To  effect  this  desirable  result,  no  material  alteration 
was  necessary  in  the  structure  of  colonial  institutions. 
The  needful  change  was  accomplished,  as  we  have  seen, 
by  instructions  from  the  Crown  to  the  several  colonial 
governments,  directing  that,  for  the  future,  public  affairs 
in  the  colony  should  be  administered  in  conformity 
with  the  principles  of  ministerial  responsibility  which, 
since  the  Revolution  of  1688,  have  been  engrafted  upon 
the  British  Constitution.* 

The  advocates  of  colonial  reform  had  long  striven 
to  obtain  such  a  modification  in  the  methods  of  colonial 
administration  as  would  confer  upon  British  subjects 
in  the  colonies  similar  rights  of  self-government  to 
those  enjoyed  by  their  fellow-citizens  at  home.  This 
boon  it  was  the  expressed  desire  of  the  imperial  go- 
vernment to  bestow,  so  far,  at  least,  as  was  compatible 
with  the  allegiance  due  to  the  Crown. 

•  See  ante,  p.  26  ;  and  Merivale  on  the  Colonies,  ed.  1861,  p.  636. 


\ 


\m : 


430       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


I'ositionof 
fjoveriior 
under  re- 
sponsible 
govern- 
ment. 


The  new  polity  granted  to  the  colonies  wa?  not  in- 
tended, however,  to  effect  a  fundamental  change  in  the 
principles  of  government,  by  substituting  democratic 
for  monarchical  rule.  It  was  designed  to  extend  to 
distant  parts  of  the  empire  the  practical  benefits  of  a 
parliamentary  system  similar  to  that  which  exists  in 
the  parent  state,  and  thus  to  render  political  institu- 
tions in  the  colonies,  as  far  as  possible,  "  the  very  image 
and  transcript "  of  those  of  Great  Britain. 

The  British  government  is  a  limited  monarchy,  where- 
in the  sovereign  has  certain  constitutional  rights  and 
a  defined  position. 

In  the  substanti.al  reproduction  in  a  British  colony 
of  the  imperial  polity,  the  governor  must  be  regarded 
not  merely  as  the  representative  of  the  Crown  in  mat- 
ters of  imperial  obligation,  but  as  the  embodiment  of 
the  monarchical  element  in  the  colonial  system,  and 
the  source  of  all  executive  authoritv  therein.^ 

Our  colonial  institutions,  derived  from  and  identical 
in  principle  with  those  of  the  mother  country,  are 
essentially  monarchical,  and  whatsoever  duties  or  rights 
appertain  to  the  Crown  in  the  one  are  equally  ap- 
propriate and  obligatory  in  the  other.  In  the  con- 
stitutional monarchy  of  Great  Britain,  there  is  no 
opportunity  or  justification  for  the  exercise  of  per- 
sonal government  by  prerogative.  The  Crown  must 
always  act  tlu'ough  advisers,  approved  of  parliament, 
and  their  policy  must  always  be  in  harmony  with  the 
sentiments  of  the  majority  in  the  popular  chamber. 
With  this  important  limitation,  however,  the  British 
monarch  occupies  a  position  of  authority  and  influence, 
and  is  a  weighty  factor  in  the  direction  of  public  affairs  ; 
exercising  his  high  trust  for  the  welfare  of  the  people, 
and  as  the  guardian  of  their  political  liberties. 


»•  See  ante,  p.  28. 


li'-i 


I' 

I  i ' 


^"■•0^'ii/. 


3L0NIES. 

vas  not  in- 
iinge  in  the 
democratic 
extend  to 
inefits  of  a 
h  exists  in 
ical  institu- 
very  image 

'chy,  where- 
rights  and 

itish  colony 
je  regarded 
>wn  in  mat- 
lodiment  of 
system,  and 

nd  identical 
ountrv,  are 
es  or  rights 
equally  ap- 
n  the  con- 
here  is  no 
lise  of  per- 
>own  must 
parliament, 
ny  with  the 
ir  chamber, 
the  British 
id  influence, 
iblic  affairs ; 
the  people, 
es. 


COLONIAL  RIGHTS  IN  LOCAL  AFFAIRS. 


431 


These  elementary  maxims  of  the  British  Constitution 
have  been  fully  set  forth  in  the  earlier  pages  of  this 
treatise,  and  the  precise  relation  of  the  sovereign,  in 
the  mother  country,  to  her  ministers  and  to  parliament, 
have  been  therein  carefully  explained. 

In  applying  these  general  principles  of  imperial  ad-  Non  inter- 
ministration  to  our  colonial  system,  a  constitutional  go-  j,',[v"nlor 
vernor  should  (as  expressed  by  Earl  Grey)  make  "  a  Ij'SyIJIJ!^' 
judicious  use  of  the  influence  rather  than  of  the  autho- 
rity of  his  office."  "^  Moreover,  it  is  undoubtedly  true 
that  a  governor,  in  colonies  possessing  parliamentary 
institutions,  following  the  example  of  the  sovereign, 
whose  representative  and  minister  he  is,  in  his  pre- 
scribed sphere  and  jurisdiction,  should,  as  a  general 
rule,  refrain  from  personal  interference  with  his  mi- 
nisters in  their  direction  of  local  affairs.  This  is  in 
accordance  with  the  well-known  axiom  of  colonial  re- 
sponsible government,  first  enunciated  by  Lord  John 
Russell  when  secretary  of  state  for  the  colonies,  that 
"  in  all  matters  of  domestic  policy,  the  colony  should 
be  governed  according  to  the  well-understood  views 
and  wishes  of  its  inhabitants,  as  expressed  through 
their  representatives  in  the  legislature ; "  and  it  is  in 
conformity  with  the  royal  instructions  for  the  guidance 
of  governors  in  colonies  under  responsible  government, 
which  state  that,  under  such  circumstances,  "  the  con- 
trol of  all  public  departments  is  practically  placed  in 
the  hands  of  persons  commanding  the  conhdence  of  a 
representative  legislature."  "^ 

This  rule  of  non-interference,  on  the  part  of  a  con- 
stitutional governor,  in  matters  of  local  concern,  is  sub- 
ject, however,  to  certain  limitations,  which  are  identical 


«  See     Govornor    Bowen's    de-         <>  See  Commons  Paners,  1866, 

and  the  Colouial 
sec.  4. 
1878,  C.  ld&2. 


spatch  to  tie  Earl  of  Carnarvon,  of    vol.   1.   p.    740;    ai 
Sept.   19,   1877:  Conuuona  I'apers,     Regulations,  1879, 


li 


I  if 


f'. 


ft«^-*««Ww«i<«-«.K., 


11, 11. ..  I     I 


Except  to 
uphold  the 
law,  or 
protect 
the  people. 


Must  con- 
sent to  all 
acts  of  go- 
vernment. 


His  re- 
served 
powers. 


'< 


432       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

in  principle  with  the  usages  which  define  and  regulate 
the  duties  of  the  sovereign  at  home. 

Firstly,  the  governor  is  the  especial  guardian  of  the 
law,  and  must  never  sanction  any  ministerial  act  or 
proposal  which  infringes  upon  an  existing  law. 

Secondly,  the  governor,  like  the  queen  herself,  is 
bound  to  be  satisfied  as  to  the  wisdom  {,  id  political  ex- 
pediency of  every  act  or  proceeding  advised  by  his 
ministers,  before  he  ratifies  and  sanctions  the  same 
with  the  authority  which  appertains  to  his  office. 

To  enable  the  governor  to  form  sound  and  intelligent 
conclusions  in  regard  to  every  question  of  state  policy, 
or  act  of  administration  submitted  to  him  for  his  appro- 
val, it  is  essential  that  the  fullest  information  should  be 
communicated  to  him  in  relation  to  the  same ;  that  he 
should  be  free  to  criticise,  discuss,  and  suggest  altera- 
tions thereupon ;  and  likewise  that  he  should  himself 
be  at  liberty  to  propose,  for  the  consideration  and  con- 
currence of  his  ministers,  any  matter  or  thing  which  he 
might  deem  to  be  proper  for  governmental  action. 

While  it  should  be  the  continual  aim  of  a  constitu- 
tional governor  to  co-operate  cordially  with  his  minis- 
ters for  the  time  being,  irrespective  of  personal  inclina- 
tions or  of  party  preferences,  should  he  be  unjible  to 
agree  with  them  upon  any  matter  affecting  the  public 
interests  which  he  may  consider  to  be  of  sufficiently  vital 
consequence  to  justify  such  €an  extreme  measure,  he  is 
always  entitled,  as  a  last  resort,  to  dismiss  them  from  his 
counsels,  and  to  have  recourse  to  other  advisers.  By 
the  exercise  of  this  reserved  power,  upon  suitable  occa- 
sions, the  full  benefits  of  monarchical  government  are 
guaranteed  to  the  people.  And  the  necessity  imposed 
upon  the  governor  under  such  circumstances  that  he 
should  be  able  to  secure  the  assistance  of  other  minis- 
ters, who  are  willing  to  become  responsible  for  his  acts 
in  the  dismissal  of  their  predecessors;  together  with 


I 


OLONIES. 

nd  regulate 

'dian  of  the 
erial  act  or 
aw. 

L  herself,  is 
political  ex- 
ised  by  his 
3  the   same 
lis  office, 
d  intelligent 
state  policy, 
)r  his  appro- 
3n  should  be 
ne ;  that  he 
Tgest  altera- 
ould  himself 
ion  and  con- 
ing which  he 
.  action, 
f  a  constitu- 
th  his  minis- 
lonal  inclina- 
)e  unable  to 
g  the  public 
iciently  vital 
easure,  he  is 
lem  from  his 
dvisers.     By 
uitable  occa- 
emment  are 
jsity  imposed 
nces  that  he 
other  minis- 
for  his  acts 
jgether  with 


1  ! 


COLONIAL  RIGHTS  IN  LOCAL  AFFAIRS. 


433 


the  obligation  imposed  upon  the  new  administration  of 
obtaining  a  ratification  of  their  conduct  and  policy  by 
the  local  parliament,  either  with  or  without  a  direct 
appeal  to  the  constituencies  by  a  dissolution  of  the 
same,  —  affords  an  ample  warrant  that  these  constitu- 
tional powers  will  be  wisely  used,  and  solely  for  the 
public  good.^ 

This  doctrine  may  be  illustrated  by  reference  to  the 
following  extracts  from  despatches  from  her  Majesty's 
secretary  of  state  for  the  colonies  to  colonial  governors : 

Thus,  on  March  26,  1862,  the  colonial  secretary  (the  Duke 
of  Newcastle)  wrote  as  follows  to  the  governor  of  Queensland 
(Sir  G.  F.  Bowen)  :  — 

"  The  general  principle  by  which  the  governor  of  a  colony  Limits  of 
possessing  responsible  government  is  to  be  guided  is  this:  J"*''^"«»'"'9 
that,  when  imperial  interests  are  concerned,  he  is  to  consider  rcnce  in 
himself  the  guardian  of  those  interests;  but,  in  matters  of  J,"rng*^""' 
purely  local  politics,  he  is  bound,  except  in  extreme  cases,  to 
follow  the  advice  of  a  ministry  which  appears  to  possess  the 
confidence  of  the  legislature.     But  extreme  cases  are  those 
which  cannot  be  reduced  to  any  recognized  principle,  arising 
in  circumstances  which  it  is  impossible  or  unwise  to  anticipate, 
and  of  which  the  full  force  can,  in  general,  be  estimated  only 
by  persons  in  immediate  contact  with  them." 

The  Duke  of  Newcastle,  however,  defined  the  "extreme 
cases  "  referred  to  by  him  as  "  such  extreme  and  exceptional 
circumstances  as  would  warrant  a  military  or  naval  officer  in 
taking  some  critical  step  against  or  beyond  his  orders.  Like 
such  an  officer,  the  governor,  who  took  so  unusual  a  course 
in  the  absence  of  instructions  from  home,  would  not  be  neces- 
Starily  wrong,  but  he  would  necessarily  act  at  his  own  peril. 
If  the  question  were  one  in  which  imperial  interests  were  con- 
cerned, it  would  be  for  the  home  government  to  consider 
whether  his  exceptional  measure  had  been  right  and  prudent. 
If  the  question  were  one  in  which  colonial  interests  were 
alone  or  principally  concerned,  he  would  also  make  himself, 


^!k? 


ii^  n 


.m 


•  See  ante,  pp.  40,  336,  420,  and  post,  pp.  446,  448,  453. 
Niueteenth  Century,  fur  December,  1878,  p.  1063. 


And  see  the 


f^  I 


i: 


■■-^-X...  ..i^^^ 


His  previ- 
ous con- 
sent to 
proposed 
loRisla- 
tion. 


434       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

in  a  certain  sense,  responsible  to  the  colonists,  who  might 
justify  the  course  he  had  taken,  and  even  prove  their  grati- 
tude to  him  for  taking  it  by  supporting  him  against  the  mi- 
nisters whose  advice  he  had  rejected  ;  but  who,  on  the  other 
hand,  if  they  perseveringly  supported  those  ministers,  might 
ultimately  succeed  in  making  it  impossible  for  him  to  carry 
on  the  government,  and  thus,  perhaps,  necessitate  his  recall." 
The  Duke  of  Newcastle  added  these  significant  remarks :  — 
"  In  granting  responsible  government  to  the  larger  colonies 
of  Great  Britain,  the  imperial  government  were  fully  aware 
that  the  power  they  granted  must  occasionally  be  used  amiss. 
But  they  have  always  trusted  that  the  errors  of  a  free  govern- 
ment would  cure  themselves ;  and  that  the  colonists  would  be 
led  to  exert  greater  energy  and  circumspection  in  legislation 
and  government  when  they  were  made  to  feel  that  they  would 
not  be  rescued  from  the  consequences  of  any  imprudence 
merely  affecting  themselves  by  authoritative  intervention  of 
the  Crown  or  of  the  governor." ' 

On  Nov.  20,  1866,  Lord  Carnarvon,  the  then  colonial 
secretary,  addressed  a  despatch  to  Sir  G.  F.  Bowen  (go- 
vernor of  Queensland),  which  not  merely  endorses  the 
general  principle  embodied  in  the  preceding  extract, 
but  also  refers  to  an  important  point  of  constitutional 
practice,  arising  out  of  the  relations  of  a  governor  to 
his  responsible  ministers :  — 

I  have  given  my  best  consideration  to  the  question  which 
you  have  asked,  "  whether  it  is  requisite  or  desirable,  in  colo- 
nies possessing  parliamentary  government,  that  the  consent 
of  the  governor  (as  of  the  sovereign  in  England)  should  be 
previously  obtained  by  hi:^  ministers  to  their  most  important 
measures,  especially  to  the  introduction  by  them  of  any  l)ills 
of  an  extraordinary  nature,  whereby  the  prerogative  of  the 
Crown,  or  the  rights  and  property  of  British  subjects  resident 
elsewhere,  or  the  trade  of  the  United  Kingdom,  or  other  im- 
perial interests,  may  be  prejudiced. 


'Qnoted  in  Sir  G.  F.  Bowen's  Anpfust,  1878,  C.  2178,p.  70.  And 
despatflli  to  the  sfcretury  of  state,  of  see  Victoria  Pari.  Papers,  1878,  no. 
May    8,    1878;    Commons   PaiHjrs,    27,  p.  7. 


m 


)LONIES. 

5,  who  might 
3  their  grati- 
ainst  the  mi- 
on  the  other 
listers,  might 
him  to  carry 
te  his  recall." 
it  remarks :  — 
arger  colonies 
e  fully  aware 
)e  used  amiss, 
a  free  govern- 
nists  would  be 
I  in  legislation 
lat  they  would 
y  imprudence 
atervention  of 

then  colonial 
i.  Bowen  (go- 
endorses  the 
ding  extract, 
constitutional 
governor  to 

f^uestion  which 
nrable,  in  colo- 
at  the  consent 
and)  should  be 
nost  important 
;m  of  any  bills 
rogative  of  the 
ibjects  resident 
m,  or  other  im- 


2173,  p.  70.   And 
Papers,  1878,  no. 


COLONIAL  RIGHTS  IN  LOCAL  AFFAIRS. 


435 


'.n 


There  can  be  no  doubt  that  it  is  most  desirable  that  tlie 
ministers  should  obtain  the  governor's  previous  concurrence 
in  their  most  important  measures,  especially  when  they  are 
of  the  character  indicated  in  your  present  despatch. 

It  is  obvious  tliat  vvithout  a  full  knowledge  on  the  part 
of  ihe  governor  of  tLe  measures  which  l)is  responsible  minis- 
ters intend  to  propose  to  the  representative  Assembly  of  the 
colony,  and  an  assent  on  his  part  to  their  introduction,  so  far 
as  he  can  properly  give  such  assent,  there  cannot  exist  that 
frank  and  confidential  relationship  between  the  governor  and 
his  advisers  which  must  be  always  conducive  to  the  harmo- 
nious working  of  government. 

I  am,  however,  unable  to  say  that  it  is  indispensable  that 
this  concurrence  should  be  obtained,  or  that  governors  are 
bound  to  enforce  the  practice. 

I  am  advised  that  +here  is  no  law  or  rule  which  renders  in- 
dispensable such  a  practice  in  England,  except  when  a  mea- 
sure is  in  progress  affecting  the  rights  of  the  Crown  ;  and  in 
this  ca^e  the  rule  applies  to  private  members  as  much  as  to 
the  government  of  the  day.  With  this  qualification,  no  ex- 
ception would  be  taken  in  parliament  to  a  measure  proposed 
by  a  minister  of  the  Crown  on  the  ground  that  it  is  alleged 
or  even  admitted  not  to  have  received  the  previous  assent  of 
the  Crown.  Whether  it  has  or  not  been  submitted  to  the 
sovereign,  is  a  matter  between  the  sovereign  and  the  minister. 
In  practice,  no  doubt,  the  sovereign,  if  he  disapproved  of  a 
measure  introduced  by  his  ministers,  would  have  the  consti- 
tutional right  to  dismiss  them  ;  but  whether  he  would  choose 
to  exercise  this  right  would  depend  upon  other  constitutional 
considerations  bearing  on  the  expediency  of  a  change  of  mi- 
nisters. 

This  being  the  relation  of  your  executive  council  towards 
yourself,  as  representing  the  sovereign  authority  of  the  queen, 
I  think  that  you  are  at  liberty,  or  rather  that  you  would  be 
bound  in  fairness,  to  inform  them  of  the  course  yon  proposed 
to  take  respecting  any  particular  measure  proposed  by  them, 
wliether  by  giving  it,  when  passed,  the  assent  of  the  Crown, 
by  refusing  that  assent,  or  by  reserving  it  for  the  significa- 
tion of  her  Majesty's  pleasure."* 

«  Queenfilanrl  Log.  Asaem.  ready  cotisidored  the  circmnstanoes 
Votes,  1867,  p.  84.     VVe  have  al-     under  which  a  governor  would  be 


•  i 

'  i  :i 


■H 


IP  15: 


/ 


Gover- 
nor's duty 
to  upliold 
the  law. 


n 


436       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

But  while  "  it  is  the  desire  of  her  Majesty's  govern- 
ment to  observe  to  the  utmost,  the  principle  which 
establishes  ministerial  responsibility  in  the  administra- 
tion of  colonial  affairsy  .  .  .  nevertheless,  it  is  always 
the  plain  and  paramount  duty  of  the  queen's  represen- 
tative to  obey  the  law,  and  to  take  care  that  the  autho- 
rity of  the  Crown,  derived  to  his  ministers  through  him, 
is  exercised  only  in  conformity  with  the  law." '' 

An  instance  of  the  strictness  with  which  this  principle 
is  maintained  by  the  imperial  government,  and  of  the 
serious  consequences  attending  upon  any  deviation 
therefrom  on  the  part  of  a  colonial  governor,  is  afforded 
in  the  case  of  Sir  Charles  Darling,  who  was  recalled  from 
his  post  as  governor  of  Victoria,  in  1866,  because  of 
his  departure  from  the  rule  of  conduct  prescribed  by 
the  queen's  government,  of  a  rigid  adherence  to  law 
in  all  affairs  of  state.' 

Another  remarkable  and  instructive  exemplification 
of  the  same  principle  occurred  in  New  South  Wales, 
under  the  following  circumstances :  — 

Responsible  government  was  introduced  into  New  South 
Wales  in  1855.  Three  years  afterwards,  the  frequent  delays 
which  attended  the  passing  of  the  estimates  gave  rise  to  an 
irregular  practice  of  permitting  public  expenditure  to  be  in- 
curred under  the  authority  of  the  governor  in  council,  pursu- 
ant to  votes  of  credit  and  resolutions  of  the  Assembl}-,  in 
anticipation  of  the  passing  of  appropriation  acts  by  the  local 
parliament.  This  practice  continued  to  be  observed  until 
the  appointment  of  the  Earl  of  Belmore  to  be  governor,  in 
1867. 

No  sooner  had  Lord  Belmore  assumed  the  reigns  of  go- 


{'iistifieil  in  refusing  his  a.s.sent  to 
(ills  proposed  to  be  submitted  by  his 
mil  listers  to  the  local  legislature; 
see  ante,  p.  134,  et  seq. 

•»  Mr.  Secretary  Caldwell  to  Go- 
vernor Sir  C.  Darling,  January  20, 
1806;  Conunons  l'ai)ers,  1866,  vol. 
1.  p.  697. 


'  Particulars  of  this 
been  already  given ; 


case    have 
see  ante,   pji. 


103-108.  See  also  the  reprimand 
administered  to  Governor  Uoweii, 
in  1878,  for  failing  to  uphold  the 
supremacy  of  the  law  at  all  ha- 
zard»:  post,  pp.  508,  511. 


:' 


>LOXIES. 

''s  govern- 
iple  which 
idministra- 
,  is  always 
s  represen- 
i  the  au tho- 
rough him, 

»  h 

• 

lis  principle 
and  of  the 
r  deviation 
',  is  afforded 
^called  from 
because  of 
escribed  by 
ence  to  law 

;raplification 
outh  Wales, 


0  New  South 
uent  delays 
ve  rise  to  an 
ure  to  be  in- 
ouncil,  pursu- 
Assembly,  in 
by  the  local 
bsevved  until 
governor,  in 

reigns  of  go- 

this  case  have 
.;   see  ante,   pi>. 

the  reprimand 
overnor  IJoweii, 
g  to  uphold  the 

law  at  all  ha- 
,  511. 


I 


COLONIAL  RIGHTS  IN  LOCAL  AFFAIRS. 


437 


vernment  than  he  immediately  turned  his  attention  to  tliis 
matter.  He  perceived  the  grave  objections  to  the  continu- 
ance of  a  practice  so  unlawfid,  and  was  keenly  alive  to  the 
personal  responsibility  which  he  himself  incurred  by  issuing 
his  warrant  to  authorize  expenditure  which  had  not  been 
sanctioned  by  both  branches  of  the  legislature. 

He  accordingly  wrote  to  the  colonial  secretary  (the  Duke 
of  Buckingluim)  for  instructions,  as  to  whether  he  was  le- 
gally and  constitutionally  competent  to  exercise  a  discretion- 
ary power,  under  such  circumstances,  as  had  been  done  by  his 
predecessors  in  office  since  1858. 

In  reply,  he  was  informed  that  a  governor  could  not  le- 
gally authorize  the  expenditure  of  public  money,  without  an 
appropriation  act ;  and  that  he  was  bound  to  refuse  to  sign  a 
warrant  sanctioning  any  such  expenditure  which  had  not 
been  authorized  by  law.  But  that,  as  in  England  so  in  New 
South  Wales,  occasions  of  supreme  emergency  might  arise, 
which  would  justify  a  departure  from  ordinary  rules,  and 
wherein,  upon  the  advice  and  responsibility  of  his  ministers, 
and  after  a  careful  consideration  of  the  particular  circum- 
stances, the  governor  might  exercise  such  an  authority. 

Every  case  of  tiiis  kind  must  be  determined  on  its  own 
merits ;  but,  as  a  rule,  ^nc  secretary  of  state  was  of  opinion 
that  such  irregular  expenditure  could  only  be  justified,  "■  first, 
on  the  ground  of  necessity  ;  or,  secondly,  on  the  ground  that 
it  is  sure  to  be  subsecpiently  sanctioned,  —  joined  to  strong 
grounds  of  expediency,  even  though  short  of  actual  neces- 
sity." J 

A  few  months  afterwards.  Governor  Belmore  again  ad- 
dressed the  colonial  secretary  on  this  subject,  alleging  that 
the  Legislative  Council  of  the  colony  had  taken  umbrage  at 
certain  unauthorized  expenditure  which  had  been  avowedly 
incurred  by  government,  without  an  act  of  appropriation  ; 
aiul  that  the  council  had  protested  against  the  proceeding,  as 
l»eing  "  derogatory  to  the  privileges  of  parliament,  and  sub- 
versive of  the  constitution." 

The  governor  explained  that,  in  tliis  instance,  the  payment 
had  been  merely  of  certain  official  salaries,  in  anticipation  of 


Ilis  duty 
to  prevent 
unautlior- 
izcd  ex- 
penditure. 


-I 


in 


J   Secretary  of  State's  despatch  to  Governor  Behnore,  of  Sept.  30, 18G8; 
Cojnmon.s  Papers,  1878,  C.  217:3,  p.  117. 


438       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


iff 


ill 


the  appropriation  act,  the  passing  of  which  had  been  inad- 
vertently dehiyed  by  a  parliiinientary  adjournment ;  and  that 
there  had  been  no  intentional  infringement  of  the  privileges 
of  the  Legislative  Council. 

The  colonial  secretary  (Earl  Granville),  in  a  despatch 
dated  June  16,  1869,  pointed  out  that  any  such  proceeding 
was  at  variance  with  the  instructions  contained  in  the  forego- 
ing despatch  from  the  Duke  of  Buckingham  ,  and  observed 
that  a  temporary  inconvenience  to  certain  civil  servants  could 
not  be  regarded  as  "  an  unforeseen  emergency,"  or  as  a  case 
f  f  expf!dien.;y  that  would  justify  a  violation  of  law.  He 
a. I  leu  that,  ''except  in  case  of  absolute  and  immediate  ne- 
t u-  >/  uch,  for  example,  as  the  preservation  of  life),  no 
eXj^  j>dii,u.e  of  public  money  should  be  incurred,  without  sanc- 
tion of  law  ;  unless  it  "may  be  presumed  not  only  that  both 
branches  of  the  legislature  will  hold  the  expenditure  itself 
unobjectionable,  but  also  that  they  will  approve  of  that  ex- 
penditure being  made  in  anticipation  of  their  consent."  ^ 

Upon  the  governor  communicating  this  despatch  to  his 
ministers,  they  sent  him  in  reply  a  minute,  which,  while  ex- 
plaining the  practice  heretofore  pursued  in  such  cases,  was  in 
effect  a  protest  against  the  instructions  issued  by  her  Ma- 
jesty's secretary  of  state  to  the  governor,  as  being  an  interfe- 
rence, in  a  matter  of  local  concern,  with  their  responsibility 
as  ministers  of  the  Crown  and  representatives  of  the  parlia- 
ment and  people  of  New  South  Wales,  upon  a  question  hav- 
ing no  relation  to  imperial  interests. 

His  Excellency  forwarded  this  minute  to  the  colonial  secre- 
tary, who,  in  a  despatch  dated  elan.  7,  1870,  commented  upon 
it.  Admitting  unrescvedly  that  tlie  matter  in  hand  was  a 
purely  local  question,  her  Majesty's  government  were  never- 
theless anxious  that  the  governor's  conduct  should  be  in 
conformity  with  the  public  will,  "  when  constitutionally  as- 
certained." That  will  was  authoritatively  expressed  "  through 
two  channels,  —  the  legislature  and  the  executive  govern- 
ment." The  governor  was  justified  in  accepting,  as  the  in- 
terpreter of  tlie  public  will,  a  ministry  presumed  to  possess 
the  confidence  of  the  legislature.  But,  if  the  law  required  him 
to  do  one  thing,  and  his  ministers  recommended  him  another 


k  Coramous  Papers,  1878,  C.  2173,  p.  119. 


'  I 


kl     a 


3L0NIi:S. 


COLONIAL  RIGHTS  IN  LOCAL  AFFAIRS. 


439 


.  been  inad- 
t ;  and  that 
le  privileges 

a  despatch 
1  proceeding 
1  the  forego- 
iid  observed 
rvants  could 
or  as  a  case 
)f  law.  He 
nniediate  ne- 

of  life),  no 
kvithout  sauc- 
ily that  both 
iiditure  itself 
3  of  that  ex- 

t"  k 

ipatch  to  his 
ch,  while  cx- 
cases,  was  in 
L  by  her  Ma- 
ig  an  intcrfe- 
responsibility 
of  the  parlia- 
(juestion  hav- 

olonial  secre- 
meuted  upon 
1  hand  was  a 
t  were  never- 
hould   be   in 
itutionally  as- 
sed  "  through 
utive  govern- 
ug,  as  the  in- 
icd  to  possess 
/  required  him 
1  him  another 


course,  it  was  his  plain  duty  to  obey  the  law ;  and  it  would  Obiiga- 
be  idle  to  object  that  such  obedience  was  unconstitutional ;  i,i*iJ^in"aii 
for  the  governor  is  himself  a  branch  of  the  legislature.  local  mat- 

in a  case  of  emergency,  it  might  become  necessary  to  over-  *^'"" 
step  the  law ;  but  some  one  must  decide  whether,  in  fact, 
such  a  contingency  had  arisen.  Ihe  ministry  claim  that  they 
should  determine  this  question.  '•  But,  so  long  as  the  letter  of 
the  law  imposes  on  '■  the  governor '  the  responsibility  of  pre- 
venting a  breach  of  the  law,  this  duty  must  be  fulfilled  b}^ 
him.  Tile  pei^sonal  responsibility  of  the  governor  in  no  way 
absolves  him  from  attaching  great  weight  to  the  opinions  of 
his  ministers,  in  respect  to  fact,  law,  or  expediency."  But 
"  he  remains,  in  the  last  resort,  the  judge  of  his  own  duty, 
and  is  not  at  liberty,  on  the  advice  of  his  ministers,  ...  to 
commit  an  act  contrary  not  only  to  the  letter  but  to  the  spirit 
of  the  law." 

The  secretary  of  state  was  therefore  u;  >ble  to  recall  the 
instructions  already  given  on  this  s  Inject.  The  governor 
was  bound  to  obey  the  law,  even  if  adherence  to  his  instruc- 
tions should  bring  hhn  into  collision  with  his  ministers.  A 
difference  with  them  would  rende  it  necessary  to  ascertain 
the  wishes  of  the  colony.  The  colony  would  probably  pro- 
nounce in  favour  of  retaining  the  personal  sanction  of  the 
governor  (in  addition  to  that  of  the  ministry)  as  a  useful 
obstacle  against  unauthorized  expenditure. 

But  if  both  branches  of  the  legislature  should  agree  to  dis- 
pense with  this  injunction  of  the  law,  and  desire  that  the 
governor  should  hereafter  be  guided  by  the  advice  of  his  mi-  ' 
nisters  in  the  performance  of  this  duty,  her  Majesty's  govern- 
ment would  not  object  to  this  conclusion,  and  would  then  free 
the  governor  from  personal  responsibility  in  the  matter. 

Lord  Belmore,  in  a  despatch  dated  May  10,  1870,  informed 
the  colonial  secretary  that  he  had  caused  the  foregoing  de- 
spatch to  be  communicated  to  the  local  parliament,  and  that 
a  bill  had  been  passed,  which,  though  it  did  not  relieve  the 
governor  of  personal  responsibility  in  regard  to  public  expen- 
diture, would  establish  a  better  system  for  the  receipt,  custody, 
and  issue  of  the  public  moneys,  and  provide  for  the  audit  of 
the  public  accounts.  His  Excellency  added  that  he  had  noti- 
fied his  ministers  that  it  would  be  incumlxnit  upon  him  to 
obey  the  instructions  of  the  secretary  of  state  "  at  all  risks." 


n 


f  ' 


). 


■r""«*«»*«i«.j^. 


440       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


K 


li 


Co-opera- 
tion be- 
tween go- 
vernor 
and  minis- 
ters. 


Routine 
business. 


He  had  also  suggested  certain  changes  in  the  present  mode  of 
issuing  public  money,  vvJiich  it  would  be  desirable,  in  the  pub- 
lic interest,  to  adopt.  And  he  had  i)lainly  stated  his  convic- 
tion that  it  was  the  duty  of  the  people  of  the  colony,  not  only 
to  support  the  governor  in  the  onerous  responsibility  wliicli 
devolved  upon  him  of  controlling  unauthorized  exjjenditure, 
but  that  they  should  facilitate  his  performance  of  the  same. 
It  is  gratifying  to  know  that  the  discussion  of  this  difficult 
question  did  not  impair  the  cordiality  which  should  always 
subsist  between  the  governor  and  his  responsible  advisers.' 

But,  while  a  constitutional  governor  is  bound  to  insist 
upon  a  strict  conformity  to  law  on  the  part  of  his 
responsible  advisers  in  every  act  of  administration,  he 
is  equally  bound  on  his  own  behalf  to  aiford  to  his 
ministers  for  the  time  being  a  cordial  support  and 
co-operation.  This  support  should  be  entirely  irre- 
spective of  party  predilections.  A  governor,  like  the 
sovereign  whom  he  represents,  is  removed  out  of  the 
political  arena,  and  placed  above  and  beyond  its  strifes 
and  temptations.  His  first  duty  is  to  be  impartial  and 
just  to  all,  and,  while  he  refrains  from  any  act  which 
could  possibly  be  regarded  as  indicative  of  personal 
preference  to  either  political  party,  he  is  in  a  position 
to  exert  a  moderating  and  conciliatory  influence  with 
both  parties.  This  will  enable  him  at  all  times  to  bring 
an  even  and  unbiassed  judgment  to  bear  upon  what- 
ever may  need  to  be  submitted  for  his  consideration 
and  approval." 

Mere  matters  of  ordinary  routine  in  the  administra- 
tion of  public  business,  which  under  the  old  colonial 
polity  were  settled  by  the  governor,  or  at  any  rate 
submitted   for  his   sanction,    are,    under    responsible 


'  Commons    Papers,    1878,    C.  same  effect,  quoted     in    Governor 

217:},  pp.  Iin-ir52.  Bowen's    despatch,    of     Sept.     19, 

■"  See     despatch     to     Governor  1877,  and  Secretary  Sir  'M.  Iliclcs- 

Bowen,  of    Victoria,  from   the  co-  Beach'.s  despatch,  of  Fob.  28,  1S7iS, 

lonial    .secretary  (Earl    Carnarvon)  approving  of   the   same  :  in    Com- 

of  Nov.  10,  1870,  and  others  to  the  mous  Tapers,  1878,  C.  1982. 


COLONIAL  RIGHTS  IN  LOCAL  AFFAIRS. 


441 


government,  disposed  of  at  once  by  the  minister  in 
charge  of  tlie  department  immediately  concerned 
therein.  But  all  documents  which  require  the  indivi- 
dual action  of  the  governor  —  such  as  warrants  upon 
the  treasury,  deeds  for  signature,  applications  for  re- 
missions of  punishment  and  the  like  —  should  be  sub- 
mitted to  him  in  proper  course  through  a  minister  of 
the  Crown  ° 

In  colonies  under  responsible  government,  "  the 
governor  takes  no  part  in  the  settlement  of  the  esti- 
mates, which  are  prepared  by  the  responsible  ministers 
at  the  head  of  the  several  departments  of  the  public 
service."  His  signature  to  a  message  to  enable  the  Formal 
Assembly  constitutionally  to  take  into  their  considcra-  govtlnor. 
lion  any  proposed  vote  of  public  money  is,  therefore, 
under  ordinary  circumstances,  "  a  formal  act,"  which 
does  not  necessarily  express  or  imply  a  personal  opinion 
with  regard  to  the  policy  of  the  proceeding  which, 
upon  the  advice  of  his  ministers,  he  has  thus  initiated 
and  authorized." 

Bearing  in  mind  this  rule,  Governor  Bowen,  of  Victoria,  on 
Sept.  19,  1877,  telegraphed  her  Majesty's  secretary  of  state 
for  the  colonies  to  know  whether  he  was  at  liberty  to  consent 
to  his  ministers  placing  on  the  estimates  a  vote  for  the  pay- 
ment of  members  of  the  local  legislature,  the  principle  of 
which  had  been  twice  affirmed  by  both  houses,  notwithstand- 
ing that,  subsequently,  separate  bills,  to  authorize  the  i)ayment 
of  members  had  been  rejected  by  the  Legislative  Council. 

In  reply,  the  colonial  secretary  stated  that,  as  the  matter 
was  one  of  purely  local  concern  and  involved  no  question 
calling  for  the  intervention  of  the  imperial  government,  re- 
sponsibility must  rest  entirely  with  ministers,  and  he  saw  no 
reason  why  the  governor  should  hesitate  to  follow  their  ad- 
vice.p 

°  New   South   Wales,    Leg.   As-  Sept.   19,  1877:  Commons  Papers, 

sembly  Journals,  1859-60,  vol.  i.  1878,  C  1082. 
p.  1131.  P  Ibid.     Telegram  of   Sept.  27, 

°  See  this  point  fully  discussed  and  despatch  of  Dee  20,  1877.  And 

in  Governor  liowen's  desj)atch    of  see  ibid.  C.  2173,  p.  50. 


3  ii 


I    I 


it! 


•il  " 


-■'^4m»*^ 


>'»^<-mfft^<,^  ^'f^wf 


442       TARLIAMENTAUY  GOVEUNMENT  IN  THE  COLONIES. 


Disputes 
in  Victoria 
in  1807. 


( 


m 


It  is  true  that,  in  18G7,  under  pomewhat  similar 
circumstances,  the  then  governor  of  Victoria  had  heen 
instructed  by  the  colonial  secretary,  in  a  despatch  dated 
Jan.  1,  1868,  to  refuse  his  sanction  to  placing  on  the 
estimates  a  grant  in  favour  of  the  wife  of  ex-Governor 
Darling.  But  this  objection  was  based  on  grounds  of 
imperial  policy,  which  forbade  any  gift  to  be  received 
by  a  colonial  governor,  or  any  of  his  fjiniily,  from  the 
colony  over  which  he  had  presided,  either  during  his 
term  of  office  or  upon  his  retirement. 

But,  as  we  have  already  seen  in  our  narrative  of  the 
case,**  this  interposition  of  the  imperial  authorities 
in  a  matter  which,  on  general  principles,  ought  (at 
least  in  this  stage  of  the  proceeding)  to  have  been 
locally  decided,  gave  great  imibrage  in  the  colony,  and 
led  to  a  ministerial  crisis.  Ministers  resigned  with  a 
protest  against  the  alleged  unconstitutional  interference 
of  the  secretary  of  state,  in  disregard  of  the  rights  of 
self-government  which  had  been  conceded  to  Victoria. 
The  Assembly  sided  with  the  ex-ministers.  After  a 
fruitless  attempt  to  form  a  new  administration,  the 
governor  was  obliged  to  recall  his  late  advisers  to  office. 
Fortunately  at  this  juncture,  the  ex-governor  himself, 
for  personal  reasons,  declined  the  proposed  grant,  and 
so  further  trouble  was  averted. 

But  before  this  happy  termination  of  the  controversy, 
the  colonial  secretary  modified  his  objection,  and  wrote 
a  further  despatch,  intimating  his  opinion  that,  upon  a 
review  of  the  case,  the  proposal  of  the  Victorian  minis- 
try did  not  appear  "  to  call  for  the  extreme  measure 
of  forbidding  the  governor  to  be  a  party,  under  the 
advice  of  his  responsible  ministers,  to  those  formal  acts 
which  are  necessary  to  bring  the  grant  [in  question] 
under  the  consideration  of  the  local  parliament." ' 


1  Spe  anfcp,  pp.  109-122. 

'  Commons  Tapers,  1867-68,  vol.  xlviii.  pp.  625-704. 


^ 


COLONIAL  RIGHTS  IN  LOCAL  AFFAIRS. 


443 


The  undoubted  fact  that  the  Legislative  Council  would  ThoRovor 
regard  the  introduction  of  the  proposed  vote  into  the  puu.'"i? 
estimates  as  being,  under  the  circumstances,  an  attempt  }"'^''"|  '""^ 
to  invade  their  privileges, —  however  open  to  objection 
such  an  act  might  be  as  between  the  two  houses,  —  was 
not  a  sufficient  reason  to  justify  the  interposition  of  the 
governor  in  refusing  to  permit  the  vote  to  be  snl)mitted 
to  the  Assembly.  For  it  is  his  duty  to  avoid  "  the 
appearance  of  taking  part  with  one  side  or  the  other 
in  controversies  which  ought  to  be  locally  decided," 
even  when  they  may  involve  an  issue  between  the  two 
houses.  And  the  governor  could  not  refuse  to  follow 
the  advice  of  his  ministers  in  a  case  wherein  neither 
the  prerogatives  of  the  Crown  nor  other  imperial  interests 
were  involved,  merely  because  the  Legislative  Council 
objected  to  the  course  pursued  by  the  Assembly.' 

For  strife  between  contending  parties  is  best  allayed,  in  party 
and  harmony  between  the  two  co-ordinate  branches  of  the  '^""'''''^^• 
legislature  is  best  promoted,  -  oy  an  unflinching  mainte- 
nance of  the  principle  of  ministerial  responsibility,  and 
it  is  better  that  a  governor  should  be  too  tardy  in  relin- 
quishing tliis  palladium  of  colonial  liberty,  than  too 
rash  in  resorting  to  acts  of  personal  interference." 
Satisfactory  results  in  such  difficulties  are  rn;  j  likely 
to  be  "  reached  by  a  strict  application  of  constitutional 
principles  and  by  the  regular  working  of  the  machinery 
of  a  free  parliament."  * 

These  wise  and  statesmanlike  words  are   extracted 
from  despatches  written   by  Lord  Dufferin  in  1873, 


Papers,    1878,  C. 


'  Commons 
2173,  pp.  (5,  50. 

*  Lord  Diifferin's  (fiovernor  Ge- 
neral of  Canada)  despatch  to  the 
Karl  of  Kiniherley,  Aufj.  IS,  1S73  ; 
and  the  Secretary  of  State's  reply, 
of  Nov.  29,  1873  ;  Conunons  Ta- 
pers, 1874,  vol.  xlv.  pp.  81,  2(i7. 
See  also  Lord  Dufferin 's  admirable 


speech  at  Halifax,  in  the  summer 
of  1872,  wherein,  in  a  popular 
and  witty  vein^  yet  with  consum- 
mate perspicacity,  he  describes  the 
true  constitutional  relations  which 
should  always  subsist  between  a  .t;o- 
vernor  and  his  resiwnsible  ministers. 
Ibid.  p.  20. 


:  4 

'ft 


.j'j 


•i^ 


U 


I 


i 


444     PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

Lord  Duf-   during  his  administration  of  the  government  of  Canada, 
tfon'in'^'^   They  express  the  sentiments  which  actuated  him  during 
Bcandl*''    ^^^^  brilHant  and  successful  tenure  of  office  as  governor- 
case,         general  of  the  dominion.     But  though  patient  under 
provocation,   and  scrupulous  to  avoid  an  undue  or  un- 
timely  exercise   of   prerogative,   Lord   Dufferin    was 
always  prepared,  should  necessity  compel  the  alterna- 
tive, to  put  forth  the  reserved  powers  of  the  Crown 
rather  than  permit  injustice  to  be  done  to  the  varied 
cand  important  interests  entrusted  to  his  guardianship. 

In  proof  of  this,  mention  may  be  made  of  certain 
political  events  which  transpired  in  Canada  whilst  Lord 
Dufferin  was  in  office,  the  complete  narrative  of  which 
will  be  found  in  papers  laid  before  the  Imperial  Parlia- 
ment. I  refer  to  the  so-ctdled  "  Pacific  scandal,"  which 
led  to  the  downfall  of  the  Macdonald  administration  in 
1873. 

This  powerful  ministry  had  continued  in  office  —  with  the 
exception  of  a  brief  interlude  from  May,  18G2,  until  March, 
1864  —  ever  since  the  year  1858 

In  April,  1873,  shortly  after  a  general  election,  which  had 
resulted  in  the  return  of  a  consideraMe  majority  of  govern- 
ment supporters,  ministers  were  accused  of  liaving  tialhcked 
with  certain  capitalists,  by  undertaking  to  secure  for  them 
special  privileges,  in  connection  with  a  project  to  build  a 
railway  across  the  continent  to  the  Pacific  Ocean,  in  oider 
to  obtain  funds  wherewith  to  bribe  the  constituencies  of  the 
dominion,  and  so  to  secure  the  return  to  parliament  of  a 
majority  in  favour  of  the  administration. 

Great  excitement  prevailed  throughout  Canada  at  these 
charges.  Public  opinion  was  outraged  at  the  thought  that 
they  might  possibly  be  true.  Lujuiry  was  instituted  in  par- 
liament ;  but,  for  the  lack  of  inquisitorial  powers  and  authority 
to  take  evidence  upon  oath,  it  proved  abortive.  Before  other 
steps  could  be  taken,  in  due  order,  to  arrive  at  the  facts,  the 
governor  was  urged  by  opponents  of  the  ministr}''  to  inter- 
pose i)eremptorily  to  bring  them  to  account,  or  to  dismiss 
them  froui  his  counsels.     Partisan  newspapers  even  assailed 


.ONIES. 


COLONIAL  RIGHTS  IN  LOCAL  AFFAIRS. 


445 


of  Canada, 
liim  (luring 
I  governor- 
ient  under 
idiie  or  un- 
fferin  was 
he  alterna- 
the  Crown 

the  varied 
rdianship. 

of  certain 
whilst  Lord 
7G  of  which 
3rial  Parlia- 
dal,"  which 
listration  in 


le  —  with  the 
until  March, 

,  which  had 
;y  of  govern- 
!ig  tiatheked 
lie  for  them 
to  huild  a 
iui,  in  order 
ucios  of  the 
lament  of  a 

da  at  these 
liought  that 
iited  in  par- 
iid  authority 
before  other 
le  facts,  the 
ly  to  inter- 
to  dismiss 
en  assailed 


his  Excellency  in  outrageous  and  opprohrious  terms.  But 
Lord  Dufferin  remained  firm  in  his  adherence  to  constitu- 
tional order.  Whilst  active  in  his  endeavours,  hy  every  law- 
ful proceeding,  to  prove  or  disjjrove  the  accuracy  of  the 
allegations,  he  steadily  refused,  so  long  as  they  were  unsub- 
stantiated, to  withdraw  his  confidence  from  his  responsible 
advisers. 

Various  methods  had  been  proposed  to  determine  the  truth 
of  the  complaint  against  ministers,  but  technical  difficulties 
presented  tliemselves,  which  provoked  delay.  At  letigth,  by 
the  advice  of  ministers,  a  royal  commission  was  appointed  to 
pursue  the  investigation,  cut  short  by  the  failure  of  the  par- 
liamentary conmiittee.  This  commission  reported  evidence 
taken  before  tli?m,  but  properly  refrained  from  pronouncing 
judicially  thereon,  lest  their  judgment  might  seem  to  be  to 
the  prejudice  of  further  incpiiry  by  a  parliamentary  tribunal. 

Upon  the  re-assembling  of  parliament,  the  governor  caused 
the  evidence  taken  by  the  commission,  together  with  his  own 
despatches  on  the  subject  to  the  home  government,  to  be  laid 
before  the  House  of  Commons.  This  led  to  a  protr.icted  and 
vehement  discussion,  and  to  the  moving  of  a  vote  of  censure 
upon  the  administration,  founded  upon  the  facts  disclosed  in 
the  evidence  reported  by  the  royal  commission.  As  the  de 
bate  proceeded,  it  became  apparent  that  the  ministerial  majo 
rity  could  not  be  relied  upon  to  sustain  the  government,  in 
the  face  of  the  facts  brought  to  light  by  the  commission, 
which  though  they  did  not  prove  individual  corriiption,  for 
personal  motives,  against  particular  ministers,  sufficed  to  show 
that  large  sums  of  money  had  been  freely  and  unjustifiably 
expended,  for  the  purpose  of  influencing  tlu;  dominion  elec- 
tions. In  order  to  prevent  the  disgrace  of  defeat,  ministers 
resigned  office  before  a  vote  was  taken,  and  the  leader  of  the 
opposition  (Mr.  Mackenzie)  was  called  upon  to  form  a  new 
administration.  He  succeeded  in  this  endeavour,  and  one 
satisfactory  result  speedily  followed,  in  the  passing  of  a  more 
stringent  election  law,  with  severe  penalties  against  bribery 
and  corrupt  practices,  an  olYence  which  had  gradually  attiiincd 
large  proportions  in  Canada,  and  from  which  neither  jiarty 
could  claim  exemption." 

"  See  Canada  Common.s  Jour-  mons  Papers,  1874,  vol.  xlv.  tip. 
nals,  October  StiSHion,  1873;  Com-     1-200;  Tuttlo's  lli»tory  of  the  l)o- 


'   1 


\\i 


m 


"^  V  jaR;~ 


446       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


II 


Lord  Dtif- 
fi-rin  and 
the  "  Taci- 
flc  scan- 
dal." 


But  we  are  chiefly  concerned  with  the  conduct  of  Lord 
Dufferin  during  this  trying  time.  During  a  period  of  extra- 
ordinary popular  excitement,  he  held  the  balance  between 
the  contending  parties  with  strict  impartiality.  Although 
the  question  at  issue  was  one  of  local  concern,  he  did  not 
therefore  conclude  that  he  had  no  authority  to  determine  it. 
The  honour  of  his  ministers  and  the  credit  of  the  country 
were  at  stake,  and  it  behooved  him  to  be  satisfied  that  none 
but  men  of  honour  and  of  personal  integrity  should  fill  the 
place  of  his  constitutional  advi.sers,  and  should  wield  tiie 
authority  of  the  Crown.  Hut  he  would  not  hastily  assume 
corrui)tion  until  it  should  be  proved  to  exist.  He  therefore 
resolved,  in  the  fivst  instance,  to  leave  to  parliament  to  ascer- 
tain the  trutii  or  error  of  the  charges,  before  he  pronounced 
judgment  upon  the  question.  And  when  the  parliamentary 
iii([uiry  temporarily  failed  upon  technical  grounds,  lie  pro- 
moted and  encouraged  immediate  investigation  by  means  of 
a  royal  commission,  not  with  intent  to  withdraw  the  case 
from  the  ultimate  cognizance  and  control  of  the  House  of 
(\)nnnons.  but  to  enable  him  to  obtain  from  his  ministers  iu 
open  court  those  explanations  in  regard  to  their  conduct 
which  cireumsta!ic(>s  had  rendered  necessary,  and  upon  which 
he  had  a  right  to  insist. 

Throtighout  all  these  painful  and  embarrassing  events, 
Lord  DulTerin  never  lost  sight  of  the  fact  tiuxt  he  possessed 
reserved  j)o\vers,  air.j)ly  sutlieient  for  the  oecasion,  whatever 
might  be  his  final  convictions  upon  the  merits  of  the  case. 
*'  Of  course,"  lie  said,  in  writing  to  the  Hecretary  of  state,  *'it 
was  always  open  to  me  to  have  dismissed  my  ministers,  and 
to  have  ^aken  my  chance  of  parliament  apj)roving  my  con- 
duct, but  I  did  not  feel  myself  warranted  in  hazarding  such 
a  step  on  the  data  before  me."  " 

And  the  result  amply  justifie<l  his  forbearance.  Whatever 
ojjinion  may  be  formed  ui)on  the  merits  of  the  charges  them- 
selves, the  ministers  fell  after  they  had  every  opportiniity  of 
stating  their  case  to  the  country,  and  of  pleading  their  cause 
before  a  full  parliament,  which  comprised  u  large  majority 
of  members  avowedly  elected  in  their  interest. 


minion  of  Canada,  vol.  ii.  cc.  35         *  Commons    Papers,  1874,  vol. 
to  M.  xlv.  p.  '2H. 


h' 


[1 


OLONIES. 

luct  of  Lord 
>od  of  extra- 
nce  between 
.  Although 
1,  he  did  not 
determine  it. 
the  country 
ed  that  none 
hould  fill  the 
Id  wield  the 
fistily  assume 
He  therefore 
lent  to  ascer- 
;»  pronounced 
)arliamentary 
mds,  he  pro- 
by  means  of 
raw  the  case 
he  House  of 
;  ministers  in 
heir  conduct 
I  upon  which 

ssing  events, 

he  i)Ossessed 

on,  wliatevcr 

of  the  case. 

of  state,  ''  it 

ninistcrs,  and 

>ing  my  con- 

izartling  such 

Whatever 
liarges  t hem- 
port  unity  of 
g  their  cause 
rge  majority 


01-8,  1874,  vol. 


COLONIAL  RIGHTS  IN  LOCAL  AFFAIRS. 


447 


If,  by  their  resignation  of  office  before  a  vote  was  taken, 
they  virtually  confessed  defeat,  and  that  the  verdict  had  gone 
against  them,  they  could  not  attribute  their  discomfiture  to 
"  the  uncalled-for  intervention "  of  the  governor-general. 
This  result  left  them  with  no  ground  of  complaint  against  the 
representative  of  the  Crown,  who  was  the  last  person  in  the 
dominion  to  withdraw  his  confidence  from  his  constitutional 
advisers. 

In  his  despatch  of  Nov.  7,  1873,  notifying  the  Earl  of 
Kimbcrley  of  the  final  issue  of  this  protracted  struggle.  Lord 
Dufferin  congratulates  himself  that  it  had  bten  brought 
about,  "  not  by  an  ill-considered  and  hasty  exercise^  of  imperial 
authority,  nor  by  the  application  of  jtrcmature  pressure  from 
without,  but  by  the  free  and  spontatieous  action  of  the  repre- 
sentatives of  the  Canadian  people.''  "  During  the  whole  of 
this  unfortunate  business,"  he  remarks,  "•  I  have  never  doubted 
but  that  a  strict  application  of  the  principles  of  parliamentary 
government  would  be  sufficient  to  resolve  ever}'  difficulty, 
and  that  a  result  would  be  eventually  arrived  at  in  harmony 
with  the  con vii!t ions  and  wishes  of  the  Canadian  luople." 
But,  he  significantly  adds,  —  in  reference  to  the  authority 
vesteil  in  him,  as  re|)resenting  the  Crown  in  the  dominion, — 
*'  had  it  proved  otherwise,  I  still  held  in  reserve  a  constitu- 
tional power,  equal  to  any  emergency ;  and,  in  the  last  resort, 
I  should  have  been  qui'e  prepared  to  have  exercised  it,  in 
whatever  way  the  circumstances  of  the  case  might  have 
justified."  * 

In  rei)ly  to  this  despatch.  Lord  Kimberle}'  says:  "I  agree 
with  your  Lordship  in  the  satisfaction  which  you  express  that 
the  result  arrived  at  has  been  readied  by  a  strict  api)lication 
of  constitutional  principles,  and  by  the  regular  working  of  the 
machinery  of  a  free  parliament;  and  I  have  much  j)loasure  in 
conveying  to  you  her  ALijesty's  entire  approval  of  the  man- 
ner in  which  you  have  acted  in  circumstances  of  no  ordinary 
difficulty."  * 

During  the  remainder  of  Lord  Duffcu-in'rt  career  as  gover-  T^nlDuf- 
nor-general,  he  ae(iuired  the  confidence  and  res{»ect  of  all  f.y,"",i'[|',* 
political  parties  in  Canada,  and  won   the  affections  of  the  tioiml  go- 


vernor. 


*  CntnrHOfiH  Piipern,  1874,  vol.  xlv.  p.  207. 

*  Ibid.  p.  208. 


w 


1 


:   ! 

■I  : 


448       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


Prooc- 
di'iits  of 
intt'rpofii- 
tioii  hy  tto- 
voriiora  in 
local  ques- 
tions. 


Sir  W.  Dc- 
nison. 


SirA.Ban- 
Dcruian. 


people,  to  an  extent  previously  ur/pa.alioiod.  Tliis  was  e::- 
emplified  in  tlie  cordial  expressions  ^f  good- will  and  admira- 
tion embodied  in  the  addresses  pii:  ."^-*^ev.i  u»  iiirr,  upon  > -j 
departure  by  the  dominion  parliament^  by  proviui  ia]  legisla- 
tures, and  by  every  class  in  the  comii'  iniry,  —  tributes,  not 
only  to  his  firm  yet  impartial  rule  as  govern'.>r-general,  but 
also  in  heartfelt  acknowledgment  of  the  lively  interest  he  had 
displayed  and  the  sagacious  counsels  he  had  given  itpon  all 
matters  affecting  the  progress  and  prosperity  of  tho  Canadian 
people. 

In  further  illustration  of  tlie  position  of  a  constitu- 
tional governor,  in  colonies  having  responsible  govern- 
ment, and  of  the  inlluence  and  authority  appertaining 
to  the  office,  notwithstanding  the  gradual  emancipation 
of  such  colonies  from  im})erial  control,  the  following 
cases  may  be  cited  :  — 

In  1858,  Sir  William  Denison,  governor  of  New  South 
Wales,  successfully  opposed  an  endeavour  on  the  part  of  his 
responsible  advisers  to  increase  hu'gely  the  number  of  mem- 
bers of  the  Legislative  Council,  for  the  pun  use  of  securing  a 
ministerial  majority  in  tiiat  chamber,  in  ihe  following  year. 
Governor  Denison  was  obliged  to  warn  his  ministers  tliat  a 
certain  measure  which  they  had  in  contemplation  was  at 
variance  with  law,  and  calculated  to  o\erride  the  law,  with- 
out due  warrant  of  parliament.  He  8ucct;cded  in  convincing 
them  of  this,  else  lie  had  resolved  to  dismiss  them  from 
office.y 

In  -^'61,  Sir  A-  .ni  der  Bannerman,  the  lieutenant-gover- 
nor of  Newfound. ..xivi,  being  dissatisfied  with  the  reasons 
given  to  liim  by  his  prime  minister  (Mr.  Kent)  for  submit- 
ting to  the  local  legislature  a  bill  affecting  the  salaries  of  em- 
ployes in  the  civil  service  of  the  island,  dismissed  the  ministry, 
and  entrusted  the  formation  of  a  new  administration  to  Mr. 
Iloyles,  the  leader  of  the  opposition  in  the  Assembly.  Mr. 
Hoyles  suecee<led  in  this  undertaking,  but,  being  in  a  minority 
in  the  Assembly,  requested  the  governor  to  dissolve  the  legis- 


y  Denison 's  Viceregal  Life,  vol.  i.  pp.  435,  408. 


OLONTES. 

riiis  Wfis  e::- 
anrl  admira- 
iir\  upon  I'^a 
inial  legisla- 
•  tributes,  not 
-general,  but 
terest  he  had 
ven  upon  all 
tho  Canadian 


i"  a  constitu- 
ible  govern- 
appertaining 
imancipation 
he  following 

f  New  South 
he  part  of  his 
uiber  of  mem- 
!  of  securing  a 
oUowing  year, 
iuisters  that  a 
)lation  was  at 
It  be  law,  with- 
in convincing 
ss   them    from 

Jutenant-gover- 
jh  the  reasons 
It)  for  submit- 
1  salaries  of  em- 
Id  the  ministry, 

stration  to  Mr. 

Issembly.     Mr. 

]g  in  a  minority 

iolve  the  legis- 

08. 


COLONIAL  RIGHTS  IN  LOCAL  AFFAIRS. 


449 


Ititure.  to  which  his  Exeellenry  acf^eded.  Meanwhihs  the 
Assembly,  on  March  5,  ISOl,  passed  resolution  ~  pri>te:4!;jg 
against  the  change  of  mitii-say  and  the  pro^>osed  dissol  Uiou, 
and  negatived  a  motion  to  go  into  a  committee  of  the  whole 
house  on  v.-{iysand  m'lns.  Whereupon,  two  days  afterwurd^, 
the  legislature  was  uissolved  by  proclamation;  a  certain  b'il. 
which  had  passed  both  houses.  Laving  been  previously  v-- 
sented  to  by  proclamation.  The  result  of  the  elections  w<!,.^ 
favourable  to  the  new  ministry,  and  the  objectionable  mea- 
sure which  had  been  disapproved  by  the  governor  was  not 
again  brought  forward. 

In  a  despatch  to  the  secretary  of  state  for  the  colonies, 
narrating  these  events.  Governor  Bannerman  remarks :  "  Mr. 
Kent's  affair  was  a  serious  one.  The  new  system  of  [respon- 
sible] government,  which  was  conceded  in  1855,  instead  of 
lessening,  increases  a  governor's  responsibility.  A  bad  mi- 
nistry, with  a  corrupt  majority,  may  do  many  things  w^  *ch  a 
governor  cannot  help.  But  I  could  not  for  a  day  continue  to 
administer  the  government  of  a  colony,  unless  I  had  the  power 
to  dispense  with  the  services  of  my  ministers,  and  appeal  to 
the  country.  But  in  doing  this  a  governor  must  submit 
to  many  things,  and  look  to  what  the  consequences  may  be  to 
the  interests  of  the  people."  ^ 

In  January,  1865,  Mr.  Martin,  prime  minister  of  Now 
South  Wales,  urged  upon  the  governor  of  the  colony  (8ir  Sir  J. 
John  Young,  afterwards  Lord  Lisgar)  the  expedience  of  ap-  ^"""?- 
pointing  two  additional  members  to  the  Legislative  Cnrjcil. 
The  governor  declined  to  sanction  this  proceedinj^,  o  t  thu 
ground  that  it  was  at  variance  with  an  implied  unde  >  nidin<T 
in  regfird  to  such  appointments,  which  oui^'ht  only  --o  be 
made  for  the  convenience  of  legislation,  and  not  in  order  to 
strengthen  a  party.  This  refusal  l("i  to  the  resignation  cf 
the  ministry.  The  secretary  of  state,  however,  in  a  despatch 
dated  May  26,  1865,  expressed  his  approval  of  the  governor's 
conduct,  and  his  belief  that  the  reasons  alleged  for  refusing 
compliance  with  the  reconnnendation  of  ministers  were  soujid 


•  This  despatch  is  diod  in  a  lot-  ronto   "  Globe,"  of  Oct.  3.     And 

ter  to  the   Itolorni    Association   of  see  Newfoundland  Assem.  Journals, 

Ontario,  from   ex-Governor    Letfl-  March  5  and  C,  180L 
Her,  dated  Oct.  2,  187i),  in  the  To- 

S9 


hi) 


lit 


Ml 


'if 


1:. 


1 


■«=- 


450       PARLUMKNTARY  GOVERNMENT  IN  THE  COLONIES. 


4 


Lord  Bcl- 
morc. 


Sir  II.  Tlo 
binsuii. 


and  convincinpf.  Four  years  afterwards,  a  similar  request  was 
preferred  )>y  the  then  premier  (Mr.  Robertson)  to  tlie  go- 
vernor (Lord  Helmore),  to  the  effect  that  three  new  members 
should  be  added  to  the  upper  chamber,  liut  Lord  IJelmore 
declined  to  act  upon  this  advice  ;  and  the  appointments  were 
not  made.  Shortly  after,  the  premier  resigned,  but  for  rea- 
sons unconnected  with  this  decision  of  the  governor.  Upon 
being  informed  of  Lord  Belmore's  refusal  to  accept  this  re- 
commendation, the  secretary  of  state  approved  of  the  gover- 
nor's determination.'* 

In  1872,  the  question  was  again  mooted  ;  and  Mr.  Parkes, 
the  premier  at  that  period,  expressed  a  strong  desire  that  the 
existing  tenure  of  legislative  councillors — by  nomination  of 
the  Crown  —  should  be  exchanged  for  that  of  popular  elec- 
tion. In  a  minute  submitted  to  the  governor  upon  the  gene- 
ral question,  Mr.  Parkes  stated  "  that  the  working  of  the 
principle  upon  which  the  council  is  based  has  invoked  the 
interference  of  her  Majesty's  secretary  of  state,  in  a  manner 
not  expressly  sanctioned  by  law  ;  and  which,  with  expressions 
of  deep  regret,  your  Excellency's  advisers  cannot  but  consider 
incompatible  with  the  rights  of  self  government,  secured  to  the 
colony  by  the  constitution." 

At  this  time,  Sir  Hercules  Robinson  was  governor  of 
the  colony;  and  he  met  Mr.  Parkes's  comi)laint  by  point- 
ing out  that  it  was  lounded  upon  a  misap[)rehension.  He 
showed,  "  that  in  every  instance,  when  questions  have  arisen 
as  to  the  appointment  of  additional  members  of  council, 
the  governor  has  acted  on  his  own  responsibility,  with- 
out previous  reference  to  the  secretary  of  state,  and  that, 
V  ii  ni  the  course  adopted  has  been  reported  home,  the  secre- 
tary of  state  has  simply  expressed  his  opinion  as  to  the 
propriety  or  otherwise  of  the  governor's  proceedings,  —  an 
Dpinion  which,  on  one  of  the  occasions  referred  to,  was 
specially  invited  by  the  minister  who  conceived  himself 
aiTgrifcved  by  tiie  governor's  decision.  The  understanding  be- 
tvv».'en  the  leading  politicians  in  1801,  as  to  a  limitation  in  the 
ordirary  number  of  the  council,  was  not  come  to  in  conse- 


'^1)0. 


New  Soutli  Wales  Leg.  Assem.  Votes,  &c.,  1872-73,  vol.  i.  pp.  534, 


OLONIES. 

:  request  was 
)  to  the  go- 
lew  members 
^ord  lielmore 
:itments  were 
,  but  for  rea- 
jrnor.  Upon 
)cept  this  re- 
3f  the  gover- 

i  Mr.  Partes, 
csire  that  the 
lomination  of 
popular  clec- 
pon  the  gene- 
Drking  of  the 
5  invoked  the 
,  in  a  manner 
til  expressions 
t  but  consider 
secured  to  the 

governor  of 
lint  by  point- 

lension.  He 
IS  have  arisen 
rs  of  council, 
sibility,    with- 

to,  and  that, 
me,  the  secre- 
on  as  to  the 
iccdings,  —  an 

rred   to,  was 

ived  himself 
erstanding  be- 
lli tation  in  the 
to  in  conse- 


J,  vol.  i.  pp.  534, 


'■ 


COLONIAL  RIGHTS  IN  LOCAL  AFFAIRS. 


451 


quenco  of  any  suggestion  from  home,  nor  was  it  even  reported 
to  the  secretary  of  state  for  several  years." 

Sir  Hercules  llobiusou's  exphmation  on  this  subject  was 
coiiHrmed  by  the  colonial  secretary  (Lord  Kimberley),  who, 
in  a  despatch  dated  Nov.  29,  1872,  —  while  he  deprecated  any 
hiisiy  legislation  upon  a  matter  so  difficult  and  momentous  as 
an  amendment  to  the  constitution,  —  expressed  a  hope  that 
the  local  ministry  would  refrain  from  such  an  act  "  for  the 
sake  of  the  permanent  interests  of  constitutional  govern- 
ment in  the  coUmy,  in  the  working  of  which  her  Majesty's 
government  cannot  but  take  a  deep  interest,  although  they 
seek  in  no  way  to  interfere  with  its  internal  administra- 
tion." •^ 

The  project  for  changing  the  constitution  of  the  Legislative 
Council  in  New  South  VV^ales  was  afterwards  abandoned.  On 
March  14.  1870,  a  motion  in  favour  of  an  elective  Legislative 
Council  was  negatived,  in  the  Legislative  Assembly,  by  a  vote 
of  thirty-three  to  five,"  and  the  upper  chamber  in  that  colony 
continues  to  be  nominated  by  the  Crown. 

In  the  colony  of  New  Brujiswick,  in  April,  18G6,  a  ministe-  Oovpmor 
rial  crisis  occurred,  in  (;()nse(pien(,'e  of  the  action  taken  by  the  [i,e'^u',Ii'„lJ" 
lieutenant-governor  (Mr.  A.  II.  Gordon)  in  furtherance  of  the  quciiion. 
proposed  confederation  of  the  British  colonies  in  North  Ame- 
rica.    The  expediency  of  agreeing  to  this  union  —  upon  cer- 
tain terms,  arranged  at  a  conference  of  delegates  from  the 
several  colonies  concerned,   which   was   held   in   Quebec    in 
October,  18G4  —  was  a  test  question  at  the  New  Brunswick 
general  elections,  in  18(55  ;  and  a  large  majority  of  members, 
opposed  to  the  union,  were  returned  to  the  Assembly,  at  that 
time. 

The  lieutenant-governor  was,  nevertheless,  of  opinion  that 
the  earnest  desire  which  the  imperial  government  had  ex- 
pressed in  favour  of  the  union,  justified  him  in  again  recom- 
mending the  question  to  the  consideration  of  the  local  legisla- 
ture ;  more  especially  as  he  believed  that  a  vast  change  had 
recently  taken  place  in  the  public  .sentiment  on  this  question. 
Ministers  differed  with  the  governor  in  this  conclusion,  and 


\  ■' 


h 


»•  New  South  WiilcM  Lf'jr.  Assem.  Votos,  &c.,  1872-73,  vol.  i.  p.  536. 
*  76iV/.  1875-76,  p.  211.     Hut  see /yavr,  p.  522. 


ft' 


452       PARLIAMENTAUY  GOVERNMENT  IN  TIIE  COLONIES. 


hi  1 


i« 


objected  to  the  course  he  proposed  to  take.  They  reluctantly 
consented,  however,  to  a  less  formal  discussion  of  liie  union 
question,  with  a  view  to  discover  whether  some  basis  of  agree- 
ment in  accordance  with  the  declared  wishes  of  the  home 
government  might  not  be  found.  At  this  juncture,  the  Legis- 
lative Council  passed  an  address  to  the  queen,  in  favour  of  the 
projected  union,  and  presented  the  same  to  the  governor,  for 
transmission  to  her  Majesty.  In  acknowledging  the  receipt 
of  this  address,  the  governor  made  use  of  language  which  his 
ministers  decnned  to  be  inconsistent  with  their  policy  on  this 
question.  They  accordingly  resigned  ;  although,  at  the  time, 
they  were  able  to  command  a  majority  in  tlie  House  of  As- 
sembly. His  Excellency  at  once  formed  a  new  ministry,  who 
undertook  to  sustain  his  action  in  the  matter. 

A  series  of  resolutions,  condemnatory  of  the  address  of  the 
Legislative  Council,  and  expressing  disapi)roval  of  the  gover- 
nor's conduct,  were  about  to  be  proposed  in  the  House  of  As- 
sembly, when,  upon  the  advice  of  the  new  administration,  the 
legislature  was  prorogued,  and  shortly  afterwards  dissolved. 
The  ex-ministers,  and  their  supporters,  who  constituted  a 
majority  in  the  Assembly,  were  indignant  at  this  proceeding, 
and  f.)rwar(le(l,  through  the  governor,  an  address  of  remon- 
strance to  the  queen.  But,  at  the  ensuing  general  «'lections,  a 
large  nuijority  of  members,  in  favour  of  a  union  of  the  pro- 
vinces, was  returned.  Upon  the  reassembling  of  the  legis- 
lature, the  new  Assembly  passed  an  address,  expressing  their 
belief  that  the  constituencies  had  justified  the  course  adopted 
by  the  governor,  upon  this  occasion.'' 

A  still  more  remarkable  instance  of  prompt  and  de- 
cisive action,  on  the  part  of  a  frovornor,  in  the  interest 
of  the  colony  over  which  he  presided,  but  in  direct  op- 
position to  his  ministry,  for  the  time  being,  —  and  not- 
withstanding their  possessing  tlie  confidence  of  the 
local  parliament,  —  took  place  in  New  Brunswick,  a  few 
years  previous  to  the  events  above  narrated. 

In  1855,  a  prohibitory  liquor  law  was  passed  by  the  New 


"*  New  Brunswick  Assem.  Journals,  1866,  pp.  74,  83,  202,  221. 


)LONIES. 

'•  reluctantly 
ff  liie  union 
isis  of  figree- 
f  the  liome 
•e,  the  Legis- 
uvour  of  tiie 
jovernor,  for 

the  receipt 
;;e  whicli  his 
olicy  on  this 

at  the  time, 
louse  of  As- 
linistry,  who 

Idress  of  the 
)f  the  govur- 
llouse  of  As- 
istration,  the 
lis  dissolved, 
onstituted   a 
s  proceeding, 
ss  of  renion- 
d  ("lections,  a 
I  of  the  i)ro- 
of  the  legis- 
ressing  their 
urse  adopted 

[npt  and  de- 
Ithe  interest 
n  direct  op- 
-and  not- 
Ince  of  the 
[swick,  a  few 

by  the  New 
1 202,  221. 


COLONIAL  RIGHTS  IN   LOCAL  AFFAIUS. 


453 


I 


^ 


Brunswick  legislature.  But  the  act  proved  to  be  wholly  in-  r.ovcmor 
operative,  and  incapable  of  enforcement.  Whereupon  the  simoi7on 
lieutenant-governor  (J.  II.  Manners  Sutton),  without  exj)ress-  prohibi- 
ing  any  opinion  upon  the  principle  of  prohibitory  legislation,  {lyuoract. 
sent  a  memorandum  to  his  ministers,  in  whieii  he  expressed 
his  conviction  that  a  continuance  of  the  existing  condition  of 
affairs  was  fraught  with  peril  to  the  best  interests  of  the  com- 
munity, and  called  for  inunediate  remedy.  He,  therefore, 
suggested  a  dissolution  of  [)arlianu'nt,  with  a  view  to  a  decided 
expressi(  11  of  i)ublic  opini(Ui  in  favour  of,  or  in  opposition  to, 
the  prohibitory  princii)le.  Ministers  dissented,  altogether, 
from  his  FiVeellency's  conclusions,  and  would  not  advise  a 
dissolution.  Further  correspondence  ensued,  witiiout  a  change 
of  opinion  on  either  side.  Finally,  the  lieutenant-governor 
stated  that,  as  he  '' never  contemplated  a  dis.solution  of  the 
Assend)ly  without  the  c()n(Miircnce  of  responsible  advisers," 
ho  claime<l  that  either  the  executive  council  should  assume 
tiie  responsihility  for  the  issue  of  a  proclamation  of  dissolution 
or  that  they  should  retiic,  and  enable  him  to  seek  for  other 
advisers,  who  would  consent  to  this  act.  As  ministers  still 
demurred  to  either  course,  his  ExcelUuioy  directed  the  pro- 
vincial secretary  to  prei)are  and  ccmntersign  a  proclamation 
dissolving  the  Assemhly.  His  recpiest  was  complied  witli, 
but  immediately  afterwards  the  ministry  resigned.  The  go- 
vernor recjuested  them  to  retain  ofiice  until  their  successors 
were  a])pointcd.  In  nine  days,  he  notified  them  that  he  had 
succeeded  in  forming  a  new  administration,  who,  agreeing 
with  him  in  tlie  necessity  for  an  immediate  dissolution  of  par- 
liament, were  prepared  to  assume  responsibility  for  the 
same. 

The  elections  were  held  without  delay;  and,  in  less  than 
three  months  after  the  change  of  ministry,  an  extra  session  of 
the  legislature  was  convened.  It  was  of  very  brief  duration. 
But,  in  answer  to  the  speech  from  the  throne,  i)oth  houses 
expresscid  their  satisfaction  at  tlu;  governor's  judicious  exer- 
cise of  his  constitutional  j)owers,  and  at  iUit  promptitude  with 
which  he  had  had  recourse  to  the  advice  of  {)arliameut.  A 
bill  to  repeal  the  prohibitory  liqiu)r  law  was  submitted  to  the 
Assend)ly,  as  a  ministerial  measure.  It  passed,  by  a  vote  of 
3S  to  2  ;  and  was  agreed  to  by  the  Legislative  Council  without 
a  division.     Thus,  both  the  constitutionality  and  the  expeili- 


>   1 


ill 


Governor 
Doiii^oii 
on  a  land- 
grant. 


Sir  II.  Ro- 
binson. 


Governor 
Weill  on 
unauthor- 
ized ex- 
penditure. 


454       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

eiicy  of  tlie  governor's  action,  on  thia  occasion,  were  distinctly 
ratified  by  both  houses. « 

In  1801,  Sir  William  Denison,  governor  of  New  South 
Wales,  being  about  to  reliiKiuish  his  otHce,  and  desirous 
before  his  departure  to  settle  a  long-standing  dispute,  in  re- 
ference to  a  land  claim,  in  conformity  with  instructions  re- 
ceived from  the  imperial  government,  re(iuested  the  colonial 
secretary  to  allix  the  great  seal  of  the  colony  to  a  grant  of 
lund  to  the  claimant.  The  secretary  disapproved  of  the  pro- 
posed grant,  and  declined  to  be  a  party  to  the  proceeding, 
or  to  become  responsible  for  it.  The  governor  then  desired 
him  to  hand  over  the  seal  and  his  Excellency  sealed  the  docu- 
ment himself.  This  irregular  proceeding  led  to  the  resigna- 
tion of  the  whole  ministry.  Shortly  afterwards,  the  local 
parliament  met,  when  an  attempt  was  made  in  the  Legislative 
Assembly  to  pass  a  vote  of  censure  upon  the  ex-governor  for 
liis  conduct  on  this  occasion.  But  the  motion  was  negatived 
upon  the  previous  question  being  proposed  thereon.' 

In  187(1,  the  then  governor  of  New  South  Wales  (Sir  Her- 
cules Robinson)  objected  to  aflix  his  sign-manual  to  land 
grants,  until  some  more  effectual  system  had  been  devised  to 
ensure  genuineness,  and  to  prevent  fraud  by  the  tender  of 
spurious  grants  for  his  sanction  and  signature.  This  led  to 
the  adoption  of  improved  regulations  in  the  premises,  and  of  a 
constitutional  rule  that  eaeh  deed  should  be  duly  authenti- 
cated by  the  signature  of  the  minister  for  lands  before  it  "was 
submitted  for  the  governor's  signature.*''  Hy  this  method, 
unity  of  action  between  the  governor  and  his  ministers  in 
such  matters  was  secured,  and  the  liability  of  fraudulent 
grants  being  surreptitiously  obtained  was  proportionably 
diminished. 

On  April  23,  1877,  the  sanction  of  the  governor  of  Tasma- 
nia wjis  requested,  by  ministers  in  council,  to  the  payment  of 
a  certain  sum  to  an  individual  pursuant  to  an  award  upon  a 
claim  against  government.  His  Excellency  objected  to  the 
payment,  because  the  previous  sanction  of  parliament  to  this 
appropriation  of  public  money  had  not  been  given ;  and  the 


e  New  Brunswick   Assem.  Jour-  Vote.s,  1861,    vol.  i.  pp.  58,  416, 

nals,  1856,  pp.  8,  2:J,  and  1857,  647-743. 
p.  88.  «  Ibid.  \QlQ-n,  vol.  i.  pp.  208, 

^  New     South     Wales    Assem.  093. 


' 


M  ' 


OLONIES. 

;re  distinctly 

Now  South 
viul  desirous 
ispute,  in  re- 
,tructions  re- 
l  the  colonial 
to  a  grant  of 
d  of  the  pro- 
L'  proceeding, 

then  desired 
ded  the  doeu- 
o  the  resigna- 
•ds,  the  U)cal 
le  Legislative 
c-governor  for 
was  negatived 
eon/ 

ales  (Sir  Iler- 
luual  to  land 
len  devised  to 

the  tender  of 
Tliis  led  to 
iiiises,  and  of  a 

Inly  authenti- 
before  it  was 
this  method, 

s  ministers  in 

of  fraudulent 

iroportionably 

nor  of  Tasma- 
lie  payment  of 
award  upon  a 
jected  to  the 
anient  to  this 
iven ;  and  the 

i.  pp.  58,  416, 
7,  vol.  i.  pp.  208, 


COLONIAL  RIGHTS  IN  LOCAL  AFFAIRS. 


455 


matter  was  dropped.  At  a  later  meeting  of  council,  however, 
the  prime  minister  informed  the  governor  that,  unknown  to 
himself  and  in  anticipation  of  the  governor's  assent,  the  sum 
awanh'd  had  actually  been  paid  to  the  claimant,  prior  to  his 
Excellency's  refusal  to  sanction  the  same  on  April  23.  Tiiere- 
upon  the  governor  recorded  in  i\  formal  minute  his  desire  "  to 
impress  upon  ministers  the  impropriety  of  signifying  his  as- 
sent "  to  any  matter,  not  of  mere  routine,  before  it  had  been 
actually  given. 

The  governor  was  laware  that,  in  all  colonies  and  under  all 
governments,  it  has  been  usual  in  mere  matters  of  routine, 
when  it  would  be  incouvenient  to  see  the  governor,  that  a 
minister  should,  on  his  own  responsibility,  assume  a  consent 
that  would  certainly  be  afforded.  And,  in  the  present  in- 
stance, the  governor  was  entirely  satisfied  that  the  departure 
from  regular  i)ractice  had  been  accidental  and  uni)remedi- 
tated.  Being  also  convinced,  from  the  explanations  oUered  by 
ministers,  that  there  was  every  reason  to  suppose  that  parlia- 
ment would  approve  of  this  expenditure,  he  stated  that  he 
would  not  refuse  to  legalize  an  act  already  performed,  as  ho 
believed,  in  good  faith  by  his  ministers  in  a  purely  colonial 
matter.'' 

In  New  Zealand,  in  November,  1877,  ministers  submitted  Onvomor 
to  the  governor  (the  Maripiis  of  Normanby)  a  recjuest  that  J)'"""''"". 
he  would  appoint  Mr.  J.  N.  Wilson  to  a  seat  in  the  Legislative   pi)intinK' 
Council.    At  the  time  this  advice  was  tendered,  a  vote  of  want  J'!?';'''!!!'^^ 
of  confidence  in  ministers  was  pending  in  the  House  of  Repre-  lors. 
aentatives.     Under  these  circumstances,  the  governor  objected 
to  make  the  appointment ;  unless  it  was  [)roposed  to  confer 
ministerial  office  on  Mr.  Wilson  (which  appears  not  to  liave 
been  the  case) :  but  he  declared  that,  in  the  event  of  the  mi- 
nistry being  sustained  on  the  confidence  motion,  he  would 
readily  consent  to  the  application. 

The  governor's  memorandum,  on  this  subject,  was,  on  the 
advice  of  ministers,  laid  upon  the  table  of  the  house.  Where- 
upon, on  Nov.  5,  the  house  agreed  to  a  resolution  censur- 
ing his  Excellency  for  "  noticing  a  matter  in  agitation  or 
debate  in  the  house,  as  a  reason  for  refusing  to  accede  to 
advice  tendered  by  his  ministers."     Certain  of  the  ministry 


>>  Tasmania,  Leg.  Council  Journals,  1877,  sess.  4,  appx.  no.  11,  p.  13. 


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33  WIST  MAIN  STRUT 

WfBSTM.N.Y.  USSO 

(716)  872-4S03 


// 


U.A 


//A 


/ 


/ 


{ 


456       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

voted  in  favour  of  this  resolution,  which  was  directed  to  be 
transmitted  to  the  governor  by  an  address. 

Meanwhile,  on  Nov.  G,  the  vote  of  want  of  confidence  was 
negatived,  but  only  by  the  casting  vote  of  the  speaker.' 
Whereupon  the  governor,  as  he  had  promised,  summoned  Mr. 
Wilson  to  a  seat  in  the  Legislative  Council. 

Upon  his  receipt  of  the  address  above  mentioned,  transmit- 
ting to  him  the  vote  of  censure,  the  governor  forwarded  the 
same  to  his  ministers.  He  then  sent  a  message  to  the  liouse, 
stating  that,  as  soon  as  he  had  been  advised  what  reply  to 
make  to  this  communication,  he  would  notify  the  same  to  the 
house.  But  tlie  ministry  refused  to  interpose  on  the  gover- 
nor's behalf.  His  Excellency  demurred  to  this  conduct,  and 
referred  them  to  the  constitutional  rule  that  "it  is  the  go- 
vernment, and  not  the  governor,  wlio  must,  so  long  as  they 
remain  his  advisers,  be  solely  responsible  to  parliament  for 
his  acts."  He  pointed  out  that,  if  ministers  were  not  pre- 
pared to  accept  and  defend  a  particular  act  of  the  governor, 
it  was  their  duty  to  resign,  and  thus  afford  the  governor  an 
opportunity  of  forming  a  ministry  who  would  sustain  him  ; 
leaving  it  to  the  governor  to  justify  his  own  course  to  the 
imperial  government,  to  which  alone  he  is  personally  respon- 
sible. The  ministry,  however,  adhered  to  their  view  that 
the  governor  was  to  blame,  on  the  abstract  question  of  re- 
fusing to  take  their  advice  in  respect  to  a  nomination  to  the 
Legislative  Council,  because  a  vote  of  censure  was  under  dis- 
cussion. Neither  would  they  admit  their  own  responsibility 
for  the  governor's  actions  to  the  full  extent  of  the  rule  above 
cited.  Accordingly,  the  governor  announced  his  intention  of 
submitting  the  question  to  the  secretary  of  state  for  the  colo- 
nies, and  of  transmitting  the  whole  correspondence  to  the 
local  parliament. ' 

No  further  action  was  taken  by  the  New  Zealand  legisla- 
ture upon  this  case.  But,  in  a  despatch  dated  Jan.  15,  1878, 
the  governor  was  informed  that  his  conduct  in  this  occur- 
rence was  entirely  approved  by  her  Majesty's  government.'* 

In  December,  1877,  the  premier  of  New  Zealand  advised 
the  governor  to  refuse  the  royal  assent  to  a  bill,  intituled 


'  As  to  the  (liitv  of  a  siieaker,  under  such  circumstauces,  see  posi^  p.  484  n. 

J    New  Zealam'l  Ofiicial  Papers,  1877-78. 

k  New  Zealaud  Uliicial  "  Gazette,''  June  21,  1878. 


.  -.t^u.-jcann  mrwiiifcr  ffiiHa.-; 


OLONIES. 
irected  to  be 

nfidence  was 
:he  speaker.* 
mmoned  Mr. 

led,  transmit- 
)r\varded  the 
to  tlie  liouse, 
'^hat  reply  to 
3  same  to  the 
5n  the  gover- 
conduct,  and 
it  is  the  go- 
long  as  they 
i,rliament  for 
r^ere  not  pre- 
;he  governor, 
governor  an 
sustain  him  ; 
jourse  to  the 
nally  respon- 
iir  view  that 
estion  of  re- 
lation to  the 
as  under  dis- 
i-esponsibility 
le  rule  above 
;  intention  of 
for  the  colo- 
lence  to  the 

dand  legisla- 
m.  15,  1878, 
1  this  occur- 
i^ernment.'^ 
and  advised 
11,  intituled 

\post,  p.  48i  n. 


COLONIAL  RIGHTS  IN  LOCAL  AFFAIRS. 


457 


"  the  land  act,"  which  had  been  agreed  to  by  both  houses  of  Governor 
the  local  parliament.     This  advice  was  given,  because  the  bill  ^l^cn'ts'ttf 
had  been  introduced  by  the  late  government,  though  after-  a  bill 
wards   forwarded    by   the    new   ministry,   but   it   hud   been  "j^lll^^of 
amended,  during  its  progress  through  parliament,  in  a  manner  ministers, 
objectionable  to  ministers.     The  governor  demurred  to  the 
course  proposed.     He  considered  that  ministers  would  have 
been  entitled  to  oppose,  to  the  extent  of  their  ability,  the  pass- 
ing of  the  bill ;  but  he  saw  no  reason  why  ho  should  take  the 
unusual  course  of  vetoing  the  measure.     Vexed  at  this  re- 
fusal, the  i)remier  at  first  declined  to  attach  his  name  to  the 
formal  certificate,  recommending  the  governor  to  assent  to  it. 
Ultimately,  however,  he  agreed  to  do  so,  and  the  bill  was 
assented  to.     The  secretary  of  state  for  the  colonies,  in  a 
despatch  dated  Feb.  15,  1878,  approved  of  the  action  taken 
by  the  governor  upon  this  occasion,  in  declining,  under  the 
circumstances  he  had  explained,  to  refuse  his  assent  to  this 
bill.i 

Similar  instances  of  the  active  interposition  of  a 
governor,  within  the  proper  limits  of  his  office,  as  re- 
presenting the  authority  of  the  Crown  in  the  provincifil 
constitutions,  have  recently  occurred  in  the  dominion 
of  Canada. 

In  1878,  Governor  Letellier,  of  the  province  of  Quebec,  Lioute- 
dismissed  his  ministry,  because,  in  his  judgment,  they  had  vernoTLe- 
failed  to  recognize  the  deference  due  to  his  office,  and  had  tellierdis- 
recommended  certain  measures  to  the  consideration  of  the 
local  legislature  of  which  he  had  not  approved.     At  the  time 
of  their  dismissal,  this  ministry  were  aJi)le  to  command  a  majo- 
rity in  the  Assembly  of  twenty  in  a  house  consisting  of  sixty- 
five  members.     When  their  successors  were  appointed,  the 
governor  was  advised  to  dissolve  the  legislature.     The  result 
of  an  appeal  to  the  constituencies  Wiis,  that  the  new  ministry 


ini.s»ies  ]>is 
ministry. 


^  See  the  despatches  in  the  sup- 
plonientto  N(;w  Zeahind  "  (iazettc," 
1878,  p.  912.  lUit  if  tiie  f,'ov('nior 
had  seen  good  to  aj>prove  of  the  ad- 
vice of  his  luinisters,  there  was  no 


constitutional  reason  why  tlie  royal 
assent  sliould  not  have  hccn  with- 
held from  this  bill  ;  see  acase  notccl 
ill  Tudd,  Pari.  Gov.  vol.  ii.  p.  6lU. 


■I 


f 


*    NJ 


Mm 


Lieute- 
nant go- 
vernor 
Cauclion 
on  cabinet 
vacancies. 


Constitu- 
tional 
powers  of 
a  gover- 
nor. 


458       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES, 

were   sustained  in  the  nev    Assembly  by  a  small  majority, 
sufficient  to  enable  them  to  carry  on  the  government."* 

In  the  province  of  Manitoba,  in  1879,  upon  two  vacancies 
occurring  in  the  local  cabinet  whilst  the  legislature  was  in 
session,  the  premier  advised  lieutenant-governor  Cauchon  to 
defer  filling  up  the  same  until  after  the  prorogation.  The 
lieutenant-governor  replied  that  he  could  not  accede  to  such 
a  proposition,  "so  contrary  to  the  spirit  and  meaning  of  the 
constitution."  Whereupon  ministers  agreed  that  the  vacan- 
cies should  be  filled  up  with  the  least  possible  delay." 

The  foregoing  precedents  will  suffice  to  establish  the 
doctrine  contended  for  elsewhere  in  this  treatise,"  that, 
wherever  parliamentary  institutions  are  established  and 
the  system  of  ministerial  responsibility  prevails,  the 
executive  officer  specially  charged  with  representing 
the  Crown  in  the  particular  colony  or  province  — 
whether  he  be  a  governor-general,  governor,  or  lieu- 
tenant-governor —  must  be  regarded  as  possessing, 
within  the  prescribed  limits  of  his  rule  and  jurisdiction, 
substantially  the  same  powers  that  belong  to  the  sove- 
reign in  the  British  constitution. 

Nay  more,  it  may  be  safely  asserted  that  the  direct 
power  of  a  constitutional  governor  in  the  colony  over 
which  he  presides  is  practically  greater  than  that  of 
the  sovereign  in  the  mother-country,  inasmuch  as  a 
governor  is  personally  responsible  to  a  higher  authority 
for  the  maintenance  of  the  royal  prerogatives,  and  for 
administering  his  government  in  accordance  with  the 
instructions  he  has  received  from  the  Imperial  Crown. 
A  governor,  like  every  other  agent,  has  a  double  rela- 
tion :  first,  to  his  principal ;  and,  secondly,  to  the  party 
with  whom  he  transacts  the  affiiirs  of  his  principal ;  ^  and 


"  See  an(<?,  pp.  405,  420.  See 
ex-Governor  Letellier's  able  letter 
to  the  Reform  Association  of  To- 
ronto, in  the  "  Toronto  Globe"  of 
Oct.  3,  1879. 


°  "  The  Colonies,"  newspaper, 
July  5,  1879,  p.  11. 

°  See  ante,  p.  29,  et  seq. 

P  Ilearn,  Govt,  of  England, 
p.  129.    See  the  remarks  of  Gover- 


I 


OLONIES. 

all  majority, 
lent.'" 

yo  vacancies 
iture  was  in 
Cauchon  to 
Ration.  The 
cede  to  such 
ming  of  the 
\t  the  vacan- 
3lay.'» 

stablish  the 
!atise,°  that, 
blished  and 
revails,  the 
epresenting 
province  — 
lor,  or  lieu- 
possessing, 
urisdiction, 
o  the  sove- 

the  direct 

colony  over 

lan  that  of 

much  as  a 

r  authority 

es,  and  for 

e  with  the 

rial  Crown. 

ouble  rela- 

0  the  party 

cipal ;  P  and 

newspaper, 

et  scq. 

of     England, 
ks  of  (iover- 


COLONIAL  RIGHTS  IN  LOCAL  AFFAIRS. 


459 


every  statesman  conversant  with  colonial  politics  is 
aware  that  in  a  colony  very  many  occasions  will  arise 
where  the  prerogative  of  the  Crown  would  need  to  be 
exercised  under  circumstances  which  would  not  necessi- 
tate, and  perhaps  would  not  justify,  a  similar  procedure 
in  England.  Striking  examples  of  this  fact  will  be 
apparent  when  we  review  the  constitutional  rights  of  a 
governor  in  the  exercise  of  the  prerogative  of  disso- 
lution. 

The  lawful  authority  of  the  Crown  in  connection  with 
parliamentary  government  —  though  apt  to  be  disre- 
garded by  theoretical  politicians,  and  subject  to  be  weak- 
ened by  the  increasing  prevalence  of  democratic  ideas 
—  is  essential  to  the  etficiency  and  stability  of  })arlia- 
mentary  institutions.  Such  authority,  when  constitu- 
tionally exercised,  is  calculated  to  be  especially  beneficial 
in  colonies  where  imperial  interference  w^ith  the  rights 
of  local  self-government  has  been  reduced  to  a  mini- 
mum, for  it  then  becomes  the  sole  expression  of  the 
monarchical  principle  in  the  colonial  polity.^ 

The  framers  of  the  American  constitution  deemed  it 
necessary,  in  the  interest  of  the  nation,  to  entrust  large 
powers  to  the  president,  including  a  right  to  veto  the 
legislation  of  Congress,  unless,  upon  reconsideration, 
two  thirds  of  both  houses  should  require  the  passing  of 
a  measure  of  which  the  president  had  disapproved. 

In  view  of  the  more  extended  powers  which  are 


Bcnc'ficiiil 
excrciso  uf 
a  f^oviT- 
iior's  pow- 
ers. 


nor  Mulgrave,  of  Nova  Scotia,  on 
this  point,  in  a  de.spatcli  to  the  co- 
lonial secretary,  dated  June  23, 1800; 
in  Nova  Scotia  Assem.  Journals, 
1861,  appx.  no.  '2,  p.  5.  See  also 
Lord  Carnarvon's  circular  despatch 
to  Australian  governors,  of  May 
4, 1875.  Commons  Papers,  1875, 
vol.  liii.  p.  090. 

1  Seea/(/e,  p.  33.  On  July  1, 1803, 
the  late  well-known  Canadian  states- 
man, Thomas  D'Arcy  Mofice,  wrote 
an  able  letter  to  the  "Montreal  Ga- 


zette." pointing  out  to  all  who  wished 
to  maintain  British  connection,  and 
to  save  Canada  from  drifting  into  a 
democracy,  the  need  of  rallying  in 
defence  of  the  principle  of  "  the 
equal  union  of  authority  and  liber- 
ty, hitherto  found  pos.sii)le  only  un- 
der the  forms  of  constitutional  mo- 
narchy." lie  appealed  to  every 
patriotic  Canadian  to  "manfully do 
his  part  towards  conserving  the  mo- 
narchical principle  in  our  constitu- 
tion." 


li 


1 

i 


«    18 


■HI 


iMi 


f^ 


460       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

practically  confided  to  a  parliamentary  ministry  able  to 
command  a  majority  in  the  popular  chamber,  it  is 
evident  that  some  restraint  upon  their  actions  is  need- 
ful to  counteract  possible  corruption  or  abuse.  This 
restraint  is  afforded  by  the  vigilant  oversight  of  the 
sovereign  or  her  representative. 

Whatever  measures  may  be  framed,  whatever  policy 
propounded,  by  a  parliamentary  ministry,  must  be  sub- 
jected to  the  scrutiny  and  must  obtain  the  approbation 
of  the  Crown.     In  a  British  colony,  the  representative 
of  the  Crown  is  usually  a  man  of  special  qualifications 
for  his  exalted  office.    Necessarily  impartial,  and  usually 
experienced  in  the  science  of  government,  the  states- 
men to  whor^  such  eminent  functions  are  entrusted 
rarely  fail  to  win  the  respect  and  confidence  of   the 
people  as  well  as  to  merit  the  favour  of  their  sovereign. 
Govcr-       For  their  powers  are  conferred  upon  them  in  trust  for 
ereaSru^t   the  welfare  of  the  people,  to  whom  in  the  last  resort 
pubiicf       every  governor  must  appeal,  when  in  the  discharge  of 
good.         liis  constitutional  rights  he  dismisses  an  incompetent  or 
unworthy  ministry,  or  asks  for  a  verdict  to  ratify  or  to 
disallow  a  decision   of    the    popular   assembly.     This 
method  affords  the  ^est  security  attainable  in  a  parlia- 
mentary system  ag  .aist  the  injurious  influences  of  party 
and  the  intrigues  of  faction,  while  it  secures  the  ulti- 
mate triumph  of  the  rights  of  self-government. 

b.  The  constitution  and  powers  of  Colonial  Parliaments^  and  the 
position  of  the  governor  in  relation  to  the  legislative  cham- 
bers. 

Having  discussed  tlie  position  and  functions  of  a  con- 
stitutional governor  in  relation  to  his  ministers,  and  in 
view  of  the  rights  of  local  self-government  conceded  to 
colonies  by  the  grant  of  parliamentary  institutions,  it 
remains  to  examine  the  lawful  powers  of  a  governor  in 
relation  to  the  local  parliament,  of  which,  by  virtue  of 
his  office,  he  is  a  component  part. 


I' 


f 


'OLOXIES. 

stry  able  to 
imber,  it  is 
ons  is  need- 
biise.  This 
light  of  the 

bever  policy 

lust  be  sub- 

ipprobation 

)resentative 

iialifi  cations 

and  usually 

,  the  states- 

3  entrusted 

nee  of  the 

r  sovereign. 

in  trust  for 

last  resort 

lischarge  of 

impetent  or 

ratify  or  to 

bly.     This 

in  a  parlia- 

es  of  party 

es  the  ulti- 

nt. 

mts,  and  the 
'ative  cham- 

s  of  a  con- 
irs,  and  in 
needed  to 
tutions,  it 
vernor  in 
virtue  of 


LOCAL  PARLIAMENTS  AND  POWERS  OF  A  GOVERNOR.     461 

But  we  must  first  endeavour  to  ascertain  what  are 
the  rightful  powers  and  privileges  of  colonial  legislative 
bodies,  and  what  are  the  constitutional  relations  which 
the  two  legislative  chambers  should  occupy  towards 
each  other. 

At  the  outset,  it  may  be  well  to  consider  briefly  the  Definition 
propriety  of  the  term  "  parliament,"  as  applied  to  a  uament'" 
colonial  legislature. 

It  has  been  urged,  with  more  ingenuity  than  discrimi- 
nation, that  it  is  wrong  in  principle  and  contrary  to 
imperial  practice  to  designate  by  this  title  any  of  the 
minor  legislative  bodies  in  existence  throughout  the 
empire,  and  that  the  appellation  of"  parliament"  should 
be  exclusively  reserved  for  the  great  council  of  the  na- 
tion, and  for  those  subordinate  legislatures  only  which 
(like  the  dominion  parliament  in  Canada)  might  be  in- 
vested with  tl'O  title  by  imperial  enactment.*^ 

But  this  idea  is  founded  on  a  fallacy,  and  is  not  war- 
ranted by  imperial  usage. 

Freeman,  whose  reputation  as  a  constitutional  writer 
ranks  deservedly  high,  tells  us  that  the  word  parlia- 
ment signifies  a  colloquy  or  talk.  The  term  appears  in 
French  in  the  twelfth  century,  and  in  Latin  in  the  thir- 
teenth. But  it  is  merely  a  translation  of  the  expression 
"  deep  speech,"  which,  according  to  the  English  chroni- 
cle, King  William  held  with  his  Witan  in  the  eleventh 
century.  The  Parliament  of  England  is  historically  so 
called  because  it  was  assembled  together  to  parkt/,  to  talk, 
to  hold  high  converse  on  affairs  of  state  with  the  king.^ 


'  Are  Legislatures  Parliaments? 
a  Study  and  Review.  By  Fennings 
Taylor,  Montreal,  1879.  Mr.  J.  S. 
Watson,  in  articles  in  the  "  Cana- 
dian Monthly,"  for  November  and 
December,  1879,  on  "the  powers 
of  Canadian  legislatures,"  shews 
that  the  legislatures  in  Upper  and 
Lower  Canada,  antecedent  to  the 
union  of    the  provinces   in    1841, 


were  officially  termed  "provincial 
parliaments,"  deriving  their  title  to 
this  appellation  from  the  fact  that 
they  were  not  subordinate  bodies, 
with  municipal  functions,  but  were 
empowered  to  make  general  laws, 
"  for  the  peace,  welfare,  and  good 
government  of  the  province." 

'  E.  A.  Freeman,  in  Xorth  Ame- 
rican Review,  vol.  cxxix.  p.  159. 


i 


: 


M 


f 


" 


mmmm 


Are  all 
k'f^isla- 
turc's  i)ar- 
lianieiits? 


462      PARLIAMENTARY  GOVERNMENT  IN  TFE  COLONIES. 

This  derivation  of  the  word  would  naturally  incline 
us  to  describe  by  the  name  of  parliament  all  legislatures 
in  the  British  dominions  which  are  substantially  en- 
trusted with  independent  powers  of  self-government. 
For  they,  in  their  limited  spheres  of  action,  are  as  su- 
preme «as  the  Imperial  Parluiment  itself,  and  are  directly 
occupied  with  the  consideration  of  questions  of  general 
concern  in  the  particular  colony.  Since  the  recogni- 
tion of  the  rights  of  local  self-government  in  the  leading 
Britisli  colonies,  the  Imperial  Parliament,  as  we  have 
seen,*  has  refrained  from  all  interference  with  the  proper 
functions  of  colonial  legislatures.  These  bodies  are  as- 
sembled, not  merely  to  pass  necessary  laws  for  the  good 
government  of  the  colony,  but  also  "  to  hold  high  con- 
verse on  affiiirs  of  state  "  with  the  representative  of  the 
Crown,  to  discuss  and,  by  discussion,  to  influence  the 
policy  of  the  local  administration  upon  all  public  mat- 
ters affecting  the  welfare  of  the  communi+v.  They  are, 
therefore,  as  much  entitled  to  be  regarded  as  "  parlia- 
ments," in  and  for  their  respective  colonies,  as  the  "  Im- 
perial Parliament "  is  in  and  for  the  whole  empire. 

Tt  is  different  when  a  limited  and  inferior  class  of 
-juestions  only  are  assigned  to  the  exclusive  legislative 
authority  of  a  subordinate  body,  whilst  the  supreme 
control  of  state  or  general  affairs  is  reserved  to  a 
superintending  power.  The  functions  of  the  one  body, 
in  such  a  case,  are  simply  municipal  and  confined  to  a 
prescribed  field  of  operation,  whilst  those  of  the  other 
are  national  and  comprehensive. 

Such,  in  fact,  is  the  relation  borne  by  the  legislatures 
of  the  different  Canadian  provinces  towards  the  federal 
government  of  the  dominion.  The  powers  and  jurisdic- 
tion of  both  are  regulated  by  imperial  statute.  To  the 
former  is  delegated  the  exclusive  right  to  make  laws  in 
regard  "  to  matters  of  a  local  or  private  nature  "  in 


*  See  ante,  p.  172. 


COLONIES. 

iimlly  incline 
II  legislatures 
^tiintially  en- 
-governmcnt. 
m,  are  as  su- 
1  are  directly 
ns  of  general 
the  reco<»:ni- 
n  the  leading 

as  we  have 
th  the  proper 
)odies  are  as- 
for  the  good 
)ld  high  con- 
itative  of  the 
nfluence  the 

public  mat- 
r.  They  are, 
[  as  "  parlia- 
as  the  "  Im- 
empire. 
nor  class  of 
e  legislative 
he  supreme 
served  to  a 
e  one  body, 
onfined  to  a 
f  the  other 

legislatures 
the  federal 
.nd  jurisdic- 
te.  To  the 
ake  laws  in 
nature  "  in 


LOCAL  PARLLA.MENTS  AND  POWERS  OF  A  GOVERNOR.  463 

each  province.  To  the  latter  is  assigned,  not  merely 
authority  to  legislate  npon  specified  public  matters 
affecting  the  public  interests  of  the  entire  dominion, 
but  also  to  i^ake  law^s  upon  whatever  may  concern 
"  the  peace,  order  and  good  government  of  Canada," 
save  only  in  matters  of  such  exclusively  local  descrip- 
tion as  to  be  suitably  reserved  for  provincial  determina- 
tion. The  general  powers  conferred  upon  the  federal 
legislature  constitute  that  body  as  being  emphatically 
and  exclusively  the  "  parliament,"  which  "  holds  high 
converse  on  affairs  of  state,"  on  whatever  may  affect  the 
welfare  of  Uie  Canadian  dominion. 

Tliis  distinction  is  justified  by  the  terms  employed  in 
the  British  North  America  act.  Therein  the  provincial 
legislative  bodies  are  designated  as  "  legislatures,"  and 
the  dominion  legislature  is  uniformly  described  as  "  the 
parliament  of  Canada." 

But  on  turning  our  attantion  to  colonial  legislatures 
in  other  parts  of  the  empire,  and  especially  where  the 
system  of  responsible  government  prevails,  we  find  that 
from  the  period  when  local  self-government  was  con- 
ceded to  these  colonies  their  legislatures  immediately 
began  to  assume  the  name  of  parliaments,  and  that  this 
claim  received  the  sanction  of  the  Crown. 

In  Victoria,  Australia,  pursuant  to  the  provisions  of 
the  Imperial  Act,  18  and  19  Vict.  c.  55,  which  enabled 
the  legislature  to  define,  by  statute,  its  own  powers  and 
privileges,  an  act  was  passed,  in  1857,  which  declared 
that  "  the  legislature  of  Victoria  shall  be  and  is  hereby 
designated  '  the  parliament  of  Victoria.'  "  " 

With  or  without  express  legislative  authority,  the 
appellation  of  parliament  was  likewise  assumed  by  all 
other  colonial  legislatures  in  Australasia  wherein  local 
self-government  had  been  introduced,  and  at  a  subse- 
quent period  by  the  "  pailiament  of  the  Cape  Colony  " 
in  South  Africa. 

«  Victoria  Stata.,  20  Vict.  no.  1. 


Subordi- 
nate legis- 
latures. 


Legisla- 
tures in 
self-go- 
verning 
colonies. 


I  : 


I  2 


1^ 


i  A 


,i 


Inl 

II   m 

• 

w 

f^       M 

j] 

fi\ 

mi 

1 

9k 
'              Hll 

<         wu 

i 

Arc  suita- 
bly term- 
ed parlia- 
ments. 


464       TARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

Thi.s  adoption  of  a  title  more  dignified  than  that  of 
legislature,  and  indicative  of  the  posses.sion  of  larger 
powers,  was  in  no  respect  an  act  of  usurpation  or  pre- 
tence. It  was  rather  a  reasonable  and  most  constitu- 
tional assertion  of  an  undeniable  fact  that  more  extensive 
powers  had  actually  been  conferred  by  the  Crown  upon 
the  particular  colony. 

The  propriety  of  this  change  of  title  has,  moreover, 
been  explicitly  admitted  by  the  imperial  government. 
Whilst  in  acts  passed  by  the  Imperial  Parliament  refer- 
ring to  the  acts  and  proceedings  of  colonial  legislatures, 
the  formal  distinction  between  the  ''  legislature  "  of  a 
colony  and  the  "  Parliament "  of  the  mother  country 
is  still  maintained,''  not  merely  to  prevent  confusion, 
but  as  an  appropriate  assertion  of  the  abstract  right  of 
general  legislation  for  the  empire  which  necessarily  be- 
longs to  the  Imperial  Parliament,  this  difference  is  not 
observed  in  other  official  documents.  A  cursory  exami- 
nation of  the  despatches  addressed  by  her  Majesty's 
secretary  of  state  to  colonial  governors,  under  the  par- 
liamentary system,  will  suffice  to  show  that  the  local 
legislatures  are  usually,  if  not  invariably,  referred  to 
therein  under  the  name  of  parliament. 

If  the  distinction  herein  noted  between  legislative 
bodies  which  continue  to  occupy  a  subordinate  and  de- 
pendent relation  to  the  imperial  authority  (or,  as  the 
case  may  be,  to  authority  vested  in  a  federal  govern- 
ment), and  those  which  have  been  entrusted,  independ- 
ently, with  general  powers  of  self-government,  be 
correct,  the  appellation  of  "  parliament "  to  the  legisla- 
tive institutions  in  self-governing  colonies  is  not  merely 
allowable,  but  peculiarly  appropriate,  as  marking  an 
epoch  in  the  constitutional  progress  of  the  colony,  and 

^  Although  in  the  marginal  notes  Act,  18  and  19  Vict.  c.  54,  sche- 

to  the  Canada  Reunion  Act,  3  and  dule,  see.  1,  the  term  •*  parliament  " 

4  Vict.  c.  35,  sees.  30  and  31,  and  to  is  applied  to  these  colonial  legisla- 

the  New  South  Wales  Constitutiop  turea. 


I  I) 


COLONIES. 

than  that  of 
n  of  larger 
ion  or  pre- 
ist  constitu- 
re  extensive 
Jrown  upon 

!,  moreover, 
;overnment. 
iment  refer- 
legislatures, 
ature  "  of  a 
ler  country 
t  confusion, 
act  right  of 
3essarily  be- 
rence  is  not 
•sory  exami- 
r  Majesty's 
ler  the  par- 
it  the  local 
referred  to 

legislative 
ate  and  de- 
or,  as  the 
\al  govern- 
independ- 
nment,  be 
he  legisla- 
not  merely 
arking  an 
olony,  and 

c.  54,  sche- 
parliament  '* 
loiiial  legisla- 


LOCAL  PARLIAMENTS  AND  POWERS  OF  A  GOVERNOR.     465 

as  an  evidence  that,  with  the  direct  consent  of  the 
Crown,  the  right  to  legishite,  in  all  matters  of  local  con- 
cern, has  been  virtually  surrendered  to  the  local  go- 
vernment. 

Another  question  presents  itself  for  our  consideration 
in  this  connection,  and  one  which  is  of  great  practical 
importance  ;  namely,  the  extent  of  the  powers  and  pri- 
vileges that  may  be  rightfully  assumed  by  a  colonial 
legislature. 

The  answer  to  this  question  depends,  in  no  small 
degree,  upon  the  actual  status  of  the  legislative  body 
itself  It  may  be  suitably  determined  by  the  mutual 
agreement  of  the  several  branches  or  estates  of  the 
legislature  in  a  formal  statute.  But  if  no  higher  war- 
rant can  be  shown  in  flivour  of  an  alleged  privilege  than 
the  assertion  of  a  single  branch  of  the  local  legislature, 
on  its  own  behalf,  the  courts  of  law  will  interpose,  and 
limit  the  claim  in  accordance  with  ge'^eral  principles  of 
constitutional  law  applicable  to  the  case.  This  has 
been  repeatedly  done  by  colonial  courts,  and,  in  the  last 
resort,  by  the  judicial  committee  of  the  privy  council."' 

Whilst  a  colony  is  in  a  state  of  pupilage,  nd  is 
directly  subject  to  the  control  of  the  Crown,  it  is  n- 
necessary  and  unbecoming  in  either  branch  of  th  al 
legislature  to  insist,  for  itself  collectively,  or  lor  ..s 
members  individually,  upon  the  right  to  any  privileges 
or  powers  except  such  as  are  indispensably  necessary 
for  the  efficient  performance  of  its  proper  functions. 
Bat  when  the  status  of  a  colony  is  raised  to  that  of  a 
self-governing  autonomy,  —  whether  its  jurisdiction  in- 
cludes the  right  of  general  legislation,  or  is  limited  to 
the  control  and  disposition  of  local  questions  of  minor 
import,  so  long  as  the  legislative  powers  exercised  are 


Powers 
and  |)ii\i- 

Icf,'(S  of 

local  ii'gis- 
latiuvs. 


■^  See  cases  cited  in    Forsyth's    Doyle  v.  Falconer,  Law  Rep.  P.  C. 
Consitutional    Law,    p.    25  ;    and    Appeals,  vol.  i.  p.  328. 

30 


r 


11  "I 
•I  ''k 

I  i 


I   : 


i 


4GG       PAUKIAMKNTAUY  (iOVKUN'MKNT  IN   TlIK  COLONIKS. 


Sliotild  ho 
(ii'liiu'il  l»y 

8tlltUtO. 


exrlusivo  and  snpromc,"  —  it  Ix'ooincs  (losiral)lo  to  clothe 
the  lo^ishitivo  hody  with  greater  authority.  Siicli  legis- 
hitiiros  will  need  to  possess  iiKjuisitorial  powers,  to  se- 
cure theuisidves  IVoni  ol)struetion.  Tliev  will  need 
coercive  powers  to  enl'orce  every  lawful  diseharj^e  of 
their  appropriate  functions,  and  to  vindicate  their  ])ro- 
ceedings  from  resistance  or  contempt.  ]5ut  in  order  to 
define  with  precision,  and  without  excess,  the  powers 
j)rop6r  to  he  conferred  upon  any  leii^islative  hody,  re- 
course should  he  had  to  statutory  enactment.  No  acts 
can  he  passed  in  any  colony  except  hy  consent  of  the 
CrowMi.  The  Crown,  therefore,  is  ahle  to  judjjje  what 
powers  and  privile«:^es  ought  to  he  granted  in  each  par- 
ticular case,  and  is  in  a  position  to  refuse  its  sanction  to 
all  nnjustifiahle  claims.  So  long  as  an  assertion  of  pri- 
vilege is  hased  upon  analogy  or  inference  merely,  it  is 
liahle  to  exaggeration.  l?ut  when  privilege  is  defined 
by  law,  there  is  a  restraint  upon  its  abuse.  This  method 
lias  accordingly  been  approved  by  the  Imperial  Parlia- 
ment, in  the  most  recent  instances  of  imperial  legisla- 
tion, to  explain  or  amend  colonial  constitutions. 

The  principle  of  defining  by  statute  the  powers, 
privileges,  and  immunities,  to  be  possessed  and  enjoyed 
by  local  legislatures  and  by  their  individual  members, 
was  first  introduced  by  the  express  authority  of  an 
imperial  act.  By  the  tliirty-fifth  section  of  the  Act 
18  and  19  Vict.  c.  65,  ^t  is  declared  that  it  shall  be 
lawful  for  the  legislature  of  Victoria  (Australia)  by 
legislation  to  define  the  privileges,  immunities,  and 
powers  of  the  Council  and  Assembly  of  that  colony,  and 
of  the  members  thereof;  provided,  that  the  same  shall 
not  exceed  those  now^  held  and  exercised  by  the  com- 
mons house  of  parliament  or  the  members  thereof.' 

*  As  in  the  case  of  several  pro-  stitutioii  of  Victoria,  was  passed  in 

vinces  in  the  donunion  of  Canada  ;  the  colony,  in   185-i,  under  the  au- 

see  at)f<'.  p.  307.  thority  of  the  Imperial  Act  13  and 

>'  This  act,  to  establish  the  con-  14  Vict.  c.  59,  which  empowered 


>L()NIKS. 

lo  to  clothe 
Such  lc;^is- 
VCVH,  to   sc- 

will  iiocd 
scharjro  of 
I  their  ])ro- 
in  onlcr  (o 
ho  powers 
)  hody,  re- 
No  acts 
<ont  of  the 
iidgc  what 
1  each  par- 
■^anction  to 
ion  of  pri- 
erely,  it  is 

is  defined 
lis  method 
rial  Parlia- 
'ial  legisla- 
ns. 

0  powers, 
d  enjoyed 
members, 
ity  of  an 
f  the  Act 
t  shall  be 
tralia)  by 
lities,  and 
olony,  and 
same  shall 
Y  the  com- 
lereof/ 

raa  passed  in 
mder  the  au- 

1  Act  13  and 
1  empowered 


.. 


LOCAL  T'AULIAMKNTS  AND  POWKIIS  OF  A  GOVKUNOK.     4G7 

Accordin}j!;ly,  in  1H57,  the  lc«rislatur(i  of  Vi(^toria 
passed  an  act,  which  was  sanctioned  by  tiie  (-rowJi,  to 
colder  upon  their  two  (chambers,  and  upon  tiie  connnit- 
tees  and  individual  mendnirs  cotnposins^  the  same,  the 
powers  and  pi'ivile<^es  appertaining  to  the  imperial 
House  of  (yonnnons." 

Tlie  British  North  Atnerica  act,  1807,  s(?otion  eighteen, 
(e\|)lained  by  the  act  38  and  IW)  Vict,,  c.  .'JS,)  (contains 
a  similar  ])r()vision  empowering  the  parliament  of  (Ca- 
nada,, to  (h;line  by  statute  the  j)owers,  privileges,  and 
innnun'ties,  of  the  ScMiate  and  Mouse  of  Coirnnons,  an<l 
of  the  mendjers  thereof  respectively;  provided  only, 
that  the  same  shall  not  exceed  those  now  held,  enjoyed, 
and  exercised  by  the  Imperial  House  of  Connnons. 

Pursuant  to  this  authority,  the  Canadian  Act,  31  Vict. 
{^  2'i,  was  passed  by  the  dominion  parliament.* 

In  the  colony  of  Tasmaniii,  however,  the  local  legisla- 
ture, in  1858,  piissed  an  act  '  to  confer  certjiin  pow(!is 
and  privileges  on  the  houses  of  the  parliament  of  Tas- 
mania." No  previous  authority  had  been  given  by  the 
imperiid  parliament  for  such  legislation  other  than  the 
general  power  granted  to  the  several  Australian  colo- 
nies by  the  Imperial  Act  13  and  14  Vict.  c.  59,  sec.  32,  to 
alter  and  amend  their  respective  constitutions.  This 
would  justify  the  inference  of  the  Canadian  Supremo 
Court — as  hereinafter  mentioned  — that  any  legislative 


Ah  in 
Vicloriii. 


In 
Canada. 


Ill   'I'JIH- 

iMidiia. 


the  several  Australian  colonies  to 
frame  their  own  constitutions.  It 
was  reserved  for  the  pleasure  of  the 
Crown,  and,  as  it  contained  provi- 
sions to  wl»i(!h  her  Majesty  was  not 
competent  to  assent  without  the  au- 
thority of  Parliament,  it  was  sub- 
mitted to  parliamentary  considera- 
tion, atnended  in  certain  particulars, 
and  appended  as  a  schedule  to  the 
act,  sanctioning  and  amending  it. 
So  that  it  actually  forms  part  of  the 
Imperial  Stat.  18  ami  19  Vict.  c.  55. 


»  Victoria  Stats.  20  Vict.  no.  1. 

"  See  th(!  case  of  the  oaths  bill, 
which  was  assented  to  by  tin;  gover- 
nor-general, under  the  authority  of 
this  statute,  but  was  afterwards  dis- 
allowed by  the  Crown  uj>on  the 
ground  that  it  proposed  to  confer 
j)ower8  in  excess  of  the  powers  exer- 
cised by  the  House  of  Commons  it- 
self, at  the  time  the  Canadian  law 
was  enacted:  ante,  p.  140. 


al 


Mi:  I 

it 


4G8       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


il 

ttwi 

Privileges 
restrained 
wiien  not 
conferred 
by  statute. 


body  is  competent,  with  the  consent  of  the  Crown,  to 
pass  an  act  to  define  its  own  powers  and  privileges.*' 

In  1874,  the  House  of  Assembly  of  Nova  Scotia 
adopted  certain  proceedings  in  dealing  with  a  refrac- 
tory member  of  their  body,  whom  they  had  resolved  to 
have  been  guilty  of  a  breach  of  privilege.  They  had 
adjudged  him  to  have  committed  a  contempt  of  the 
authority  of  the  house,  though  he  had  not  obstructed 
the  public  business,  and  had  directed  his  forcible  remo- 
val from  the  house  until  he  should  apologize  for  his 
conduct.  Whereupon  he  brought  an  action  oi  trespass 
for  assault  against  the  speaker  and  certain  members  of 
the  house,  and  obtained  in  the  Supreme  Court  of  the  pro- 
vince a  verdict  of  damages.  In  1877,  the  case  wa^  brought 
on  appeal,  before  the  Supreme  Court  of  the  dominion. 
In  January,  1878,  judgment  was  rendered  by  Sir  W.  B. 
Richards,  chief-justice  of  the  court,  and  by  the  other 
learned  judges  present.  They  all  agreed  in  affirming 
the  judgment  of  the  court  below,  and  in  dismissing  the 
appeal.  The  effect  of  this  decision  was  to  declare  "  that 
the  House  of  Assembly  of  Nova  Scotia  has  no  power  to 
punish  for  any  offence  not  an  immediate  obstruction 
to  the  due  course  of  its  proceedings  and  the  proper 
exercise  of  its  functions,  such  power  not  being  an  essen- 
tial attribute  nor  essentially  necessary  for  the  exercise 
of  its  functions  by  a  local  legislature,  and  not  belonging 
to  it  as  a  necessary  or  legal  incident ;  and,  that,  tvUhont 
prescription  or  statute,  local  legislatures  have  not  the 
privileges  which  belong  to  the  House  of  Commons  of 
Great  Britain  by  the  kx  et  consaetudo  Parliamentir 

The  chief-justice,  however,  adverted  to  the  propriety 
of  provincial  legislation  on  this  subject,  and  remarked 
that  "  the  legislatures  of  Ontario  and  Quebec  seemed 
to  have  conferred  on  the  House  of  Assembly  in  these 
provinces  extensive  powers,  to  enable  them  effectually 

^  And  see  Forsyth,  Const.  Law,  p.  20. 


Ul 


ij 


DLONIES. 

Crown,  to 
Lvileges.'' 
ova  Scotia 
h  a  refrac- 
resolved  to 

Thev  had 
ipt  of   the 

obstructed 
cible  remo- 
;izf»  for  his 
oi  trespass 
iiembers  of 
t  of  the  pro- 
va^  l)roiight 
!  dominion. 
Y  Sir  W.  B. 
'  the  other 
n  affirming 
Tiissing  the 
;lare  "  that 
o  power  to 
lobstruction 

le    proper 
an  essen- 

le  exercise 

belonging 

lat,  without 
not   the 

)ninions  of 

ntiy 

propriety 
remarked 
■ec  seemed 
y  in  these 
effectually 


statuiL'. 


LOCAL  PARLIAMENTS  AND  POWEliS  OF  A  GOVERNOR.     469 

to  exercise  their  high  functions  and  discharge  the  im- 
portant duties  cast  on  them.  It  may  be  necessary  still 
further  to  extend  tlieir  powers.  The  legislatures  of  the 
other  provinces  will  probably  consider  it  desirable  to 
take  the  same  course,  and  in  that  way  unmistakably 
place  these  tribunals  in  the  position  of  dignity  and 
power  which  it  is  desirable  they  should  possess." " 

This  decision  affirms  the  right  of  the  legislatures  in  Priviioscs 
tlie  several  provinces  of  the  Canadian  dominion  to  "Sudby 
confer  upon  themselves  and  upon  their  individual 
members,  by  a  statute, —  to  be  passed  with  the  consent 
of  the  Crown  (as  expressed  by  the  approval  of  the 
same  by  the  governor-general  of  Canada  in  cou^icil), 
any  powers  and  privileges  which  tliey  may  deem  to  be 
necessary  for  the  efficient  discharge  of  their  constitu- 
tional functions.  Such  authority  could  be  exercised 
either  by  virtue  of  tlieir  inherent  power  as  legislative 
bodies  (as  in  the  case  of  Tasmania,  above-mentioned), 
or  in  pursuance  of  the  ninety-second  section  of  the 
British  North  America  act,  1867,  which  authorizes  the 
legislature  in  each  province  to  amend  from  time  to 
time  — "  notwithstanding  anything  in  this  act "  — "  the 
constitution  of  the  province,  except  as  regards  the  office 
of  lieutenant-governor."  '^ 

Anticipating  the  suggestion  of  Chief- Justice  Richards,  in  Xova 
the  legislature  of  Nova  Scotia  in  1876,  while  the  afore- 
said action  of  Landers  ct  at  ?'.Woodworth  was  pending, 
passed  an  act  respecting  the  legislature,  which  conferred 
upon  both  houses,  and  upon  the  members  thereof,  the 
same  privileges  as  shall  for  the  time  being  be  enjoyed 
by  the  Senate  and  House  of  Commons  of  Canada,  their 
committees  and  members  for  the  time  being."  The 
dominion  minister  of  justice,  in  reporting  upon  this 
statute,  drew  attention  to  the  fact  that,  in  ]  869,  acts 


IScutiii. 


"  Landers  et  al.  v.  D.  B.  Wood- 
worth;  Ciuiada  Supreme  Court 
liep.  vol.  ii.  pp.  158-'215. 


^  See  ihid.  pp.  V,)'2.  201. 
«  N.  S.  Stats.  1876,  o,  22. 


I  ! 


i ,' 


'4 


m 


$ 


Principle 
affirmed 
by  Su- 
preme 
Court. 


470       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

purporting  to  confer  upon  the  legislatures  of  Ontario 
and  Quebec  similar  powers  had  been  objected  to  and 
disallowed.  Again,  in  1874,  a  Manitoba  statute  to  the 
same  effect  was  likewise  disallowed.  Subsequently,  in 
1870  and  in  1876,  these  three  provincial  legislatures 
passed  other  acts  to  define  their  privileges  and  powers, 
which,  though  they  appeared  to  be  open  to  very  serious 
question,  and  though  it  was  considered  doubtful  whether 
they  were  not  in  excess  of  the  jurisdiction  and  authority 
of  a  local  legislature,  yet  they  were  left  by  the  domi- 
nion government  to  their  operation,  upon  the  under- 
standing that  any  person  who  might  be  aggrieved 
thereby  could  raise  the  question  of  their  validity  in  a 
court  of  law.  But  inasmuch  as  the  Nova  Scotia  act  of 
1876  professed  to  confer  upon  the  Nova  Scotia  legisla- 
tive chambers  powers  which  it  had  been  decided  by 
dominion  authority  should  not  be  assumed  by  the  legis- 
latures of  Ontario,  Quebec,  and  Manitoba,  the  dominion 
minister  of  justice  recom.mended  that  the  objection 
should  be  brought  under  the  notice  of  the  lieutenant- 
governor  with  a  view  to  the  repeal  of  the  clauses  to 
which  exception  had  been  taken,  before  the  expiration 
of  the  time  limited  for  the  disallowance  of  the  act.^ 
Nevertheless,  it  does  not  appear  that  this  act  was  either 
amended  or  disallowed. 

The  principle  asserted  in  the  aforesaid  judgment  of 
the  Canadian  Supreme  Court,  —  which  affirmed  the 
right  of  provincial  legislatures  to  confer  upon  them- 
selves by  statute  whatever  powers  and  privileges  were 
deemed  to  be  necessary,  —  whilst  it  does  not  debar  the 
Crown  from  interposing  a  veto  upon  an  act  which 
should  attempt  to  legalize  unwarrantable  claims,  does 
in  fact  render  it  difficult  to  object  to  any  powers,  pro- 
posed to  be  conferred  by  statute,  that  they  exceeded 


*  Canada  Sesa.  Papers,  1877,  no.  89,  pp.  108-114,  201.    Canada  Ga- 
zette, vol.  viii.  p.  '202.     Manitoba  Stats.  1873,  c.  2;  1876,  c.  12. 


„ 


m'«t  m  *'  nmt 


)LONIES. 

of  Ontario 
ited  to  and 
tute  to  the 
quently,  in 
legislatures 
.nd  powers, 
^ery  serious 
ful  whether 
d  authority 
f  the  doiiii- 
the  under- 
aggrieved 
ihdity  in  a 
cotia  act  of 
otia  legisla- 
decided  by 
)y  the  legis- 
le  dominion 
!  objection 
lieutenant- 
!  clauses  to 
expiration 
)f  the  act/ 
was  either 


idgment  of 
ii lined  the 
ipon  them- 
ileges  were 
t  debar  the 
act  which 
laims,  does 
3wers,  pro- 
exceeded 


Canada  Ga- 
c.  12. 


/ 


■ill 


LOCAL  PARLIAMENTS  AND  POWERS  OF  A  GOVERNOR.     471 

the  lawful  powers  and  constitutional  competency  of  a 
legislature  to  grant.  In  this  respect,  the  court  recog- 
nizes the  possession  in  provincial  legislatures  of  a 
wider  discretion  than  had  been  heretofore  allowed, 
either  by  the  dominion  government  or  by  the  crown 
law-officers  in  England ;  ^'  and  to  this  extent  it  ap- 
proves of  the  position  taken  by  the  premier  and  attor- 
ney-general of  Ontario  (Mr.  J.  Sandfield  Macdonald), 
when,  in  an  able  memorandum,  he  protested  against 
the  disallowance  of  the  Ontario  statute  of  1869,  defin- 
ing the  privileges,  &c.,  of  the  local  Assembly.  This 
act  had  been  disallowed,  because  it  was  presumed  to 
be  ultra  vires,  and  inconsistent  with  the  limitations  of 
the  British  North  America  act.  But,  after  a  careful 
review  of  the  argument,  the  attorney-general  concludes 
with  the  pertinent  remark  that,  in  his  opinion,  '"  suffi- 
cient consideration  had  not  been  given  to  the  im- 
portant distinction  between  powers  claimed  by  the 
authority  of  a  statute  and  powers  claimed  as  inhe- 
rently belonging  to  a  legislative  body."  ^ 

The  legislatures  in  the  different  British  colonies  Twoiogis- 
wherein  parliamentary  government  is  established  are,  Jjiambers. 
as  a  rule,  composed  of  two  chambers.  The  only  ex- 
ception is  in  certain  of  the  provinces  which  are  com- 
prised in  the  dominion  of  Canada.  In  view  of  the 
limited  jurisdiction  and  functions  of  these  legislative 
bodies,  one  chamber  has  been  accounted  sufficient, 
for  the  purposes  of  legislation,  in  the  provinces  of 
Ontario,  Manitoba,  and  British  Columbia.  In  Quebec, 
Nova  Scotia,  and  Prince  Edward  Island,  the  question 
of  abolishing  the  second  chamber  is  also  under  con- 
sideration ;  but,  though  the  House  of  Assembly  in 
these  provinces  is  decidedly  in  favour  of  such  a  modifi- 


il 


''., 


Ill 


«  See  ante,  p.  365.  92,  p.  6.    The  legality  of  the  Quebec 

^  Canada    Se.ss.   Papers,    1877,  statute    (3.3  Vict.  c.  5)  was  estab- 

no.  89,  pp.  202-211,  221.     And  see  lished  in  the  case  of  ex  parte  Danse- 

S.  Austral.  Pari.  Papers,  1877,  no.  reau;  L.  C.  Jurist,  vol.  xix.  p.  210. 


Advan- 
tages of  £ 
secKjiid 
chaiiibcr. 


fli 


472       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

cation  of  the  existing  constitution,  the  Legislative 
Councils  have  not  yet  concurred  in  this  opinion. 

In  small  communities,  and  in  provinces  where  the 
business  of  legislation  is  mainly  of  a  municipal  de- 
scription, experience  has  shown  that  two  chambers  are 
cumbrous,  and  needlessly  expensive.'  But,  in  colonies 
entrusted  with  the  powers  of  local  self-government,  and 
where  the  policy  of  administration,  as  well  as  the 
making  of  general  laws  for  the  welfiire  and  good 
government  of  all  classes  in  the  community,  are  under 
the  control  of  a  local  legislature,  a  second  chamber  is 
a  most  necessary  institution.^  It  is  a  counterpoise  to 
democratic  ascendancy  in  the  popular  and  most  power- 
ful assembly,  and  serves  to  elicit  the  sober  second 
thought  of  the  people,  in  contradistinction  to  the 
impulsive  first  thought  of  the  lower  house.  These 
great  benefits  of  a  second  chamber  are  in  addition  to 
the  advantages  derived  from  the  revision  and  amend- 
ment of  laws,  which  are  too  apt  to  pass  through  the 
Assembly  in  a  crude  and  defective  state. "^  Mr.  E.  A. 
Freeman  is  of  opinion  that,  while  a  second  chamber 
is  always  valuable  in  checking  and  revising  the  acts  of 
the  popular  assembly,  it  is  especially  indispensable  in 
a  federal  system,  because  it  is  capable  of  representing 
therein  the  wants  and  wishes  of  the  several  states  or 
provinces  included  in  the  confederation  in  their  sepa- 
rate standing.' 

Under  parliamentary  government,  an  upper  chamber 
derives  special  efficacy  and  importance  from  the  fact 


'  As  ill  the  case  of  the  Leeward 
Islands,  see  Ilans.  J^eb.  vol.  ccvi. 
p.  1023.  And  see  Mr.  Kinnear's 
paper  in  favour  of  a  single  chamber. 
Fortni^litlv  Heview,  Sept.  iS(il). 

J  See  Todd,  Pari.  Govt.  vol.  i. 
p.  29. 

^  In  addition  to  the  authorities 
in  favour  of  ii  second  chaiuher,  cited 
in    the     preceding     reference,    see 


Lecky  in  North  American  Review, 
vol.  cxxvi.  p.  71 ;  lleljjs,  Thouj^flits 
on  Government,  c.  iv. ;  llearn,  Govt. 
of  England,  p.  .510;  FortMit,ditly 
Review,  July,  187(5,  p.  46;  Stock- 
mar's  Memoirs,  vol.  ii.  c.  28;  Hans. 
Deb.  on  S.  Africa  confederation 
bill,  April  2:5,  1877. 

'   lutei'national  Review,  vol.  iii. 
pp.   724,  7'41.     Ill  regard    to    the 


LONIES. 

jegislative 
(inion. 
>vliere  the 
licipal  de- 
mbers  are 
in  colonies 
iment,  and 
jU  as  the 
and  good 
are  under 
hamber  is 
erpoise  to 
3st  power- 
ler  second 
)n  to  the 
B.  These 
ddition  to 
id  amend- 
rough  the 

Mr.  E.  A. 
chamber 

le  acts  of 

usable  in 
^resenting 

states  or 
heir  sepa- 

chamber 
the  fact 

ican  Review, 

IS,  Tlioiijflits 
learn,  (iovt. 
Foitiii,ti;litly 
4(i-,   Stock- 

c.  28;  llaus. 

oufederatiou 

lew,  vol.  iii. 
rard    to    the 


./ 


LOCAL  PARLLVMENTS  AND  TOWERS  OF  A  GO'''ERNOR.     473 

that,  being  unable  to  determine  the  fate  of  a  ministry, 
it  is  much  less  influenced  by  party  combinations  and 
intrigues  than  the  lower  house.'"  "  While  the  upper 
chambers  of  all  constitutional  legislatures  recognize 
/  their  position  as  one  removing  them  entirely  from 
Q  party  considerations,  and  as  designed  to   be  a  guard 

-  against  hasty  and  immature  legislation,  they  would 
doubtless  feel  it  to  be  their  duty  to  weigh  with  more 
than  ordinary  anxiety  and  care  the  explicit  declara- 
tions of  public  opinion,  when  deliberately  given  by  all 
classes  of  the  community  upon  any  measure,  after  the 
period  of  excitement  which  might  have  given  rise  to  it 
had  passed  away.  When  such  a  spirit  pervades  the  upper 
chamber,  there  need  be  no  apprehension  of  a  conflict 
between  the  two  branches  composing  the  legislature." " 

The  two  legislative  chambers  —  which,  w  itli  the  go-  Constitu- 
vernor  who  represents  the  Crown,  form  the  parliament  two'oiiam- 
in  the  principal  colonies  of  Great  Britain  —  are  not  in-  ^'^^"" 
variably  constituted   upon    a   similar   basis.      With   a 
common  design  to  reproduce  in  the  colony  institutions 
intended  to  resemble  as  closelj^  as  possible  those  which 
exist  in  the  mother  country,  the  upper  chamber  is  in 
some  colonies  an  elective  body,  whilst  in  others  it  is 
nominated  by  the  Crown.     This  diversity  of  practice 
is  not  based  upon  any  definite  or  abstract  principle,  but 
is  simply  owing  to  the  prevailing  to'  e  of  popular  opi- 
nion in  the  particular  colony,  to  which  upon  this  ques- 
tion the  imperial  government  has  invariably  deferred. 

Thus,  in  Canada,  the  Senate  is  nominated  by  the 
Crown.      The  members  require  to  be  of  the  age  of 


working  of  a  second  chamber  in  the 
American  repnbiic,  see  Amer.  Law 
lleview,  October,  1860,  p.  18. 

'"  S.'c  Todd,  Pari.  Govt.  vol.  ii. 
pp.  387,  ;5!)8. 

"  Rnport  of  committee  of  New 
Zeahind  Lecfislative  Council,  in 
1808,  on  the  powers  and  privilejjes 
of  legislative  councils  iu  the  British 


colonies.  And  see  a  further  report 
in  1809,  which  cites  the  opinions  of 
constitutional  authorities  on  the 
subject.  See  also  Earl  Grey's  de- 
spatcli  of  Nov.  3,  1810,  to  Governor 
Harvey,  of  Nova  Scotia;  and  the 
Duke  of  Newcastle's  d('si)atcli  dated 
Fcl).  14,  1S(')2,  to  (Joveruor  Dundas, 
of  I'rince  Edward  Island. 


!    it 
,'4 


:i,ivi| 


^^1 


m 


474       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


Nomi- 
nated or 
elected 
upper 
house. 


thirty  years,  and  to  be  in  possession  of  real  or  personal 
property  to  the  extent  of  4,000  dollars.  In  New  South 
Wales,  the  Legislative  Council  is  nominated  by  the 
Crown,  and  there  is  no  qualification,  property  or  other- 
wise. In  Queensland,  also,  the  Legislative  Council  is 
nominated  by  the  Crown,  and  there  is  no  qualification 
required.  At  the  Cape,  the  Legislative  Council  is 
elected  by  the  same  voters  as  the  House  of  Assembly, 
but  a  qualification  of  £2,000  real  or  £4,000  personal 
property  is  requisite.  In  South  Australia,  the  Legisla- 
tive Council  is  elected  by  the  whole  colony  voting  as 
one  district.  There  the  electors,  only,  must  have  a  pro- 
perty qualification,  while  there  is  no  such  qualification 
for  electors  as  regards  the  House  of  Assembly.  In 
Victoria,  the  Legislative  Council  is  elected  on  a  quali- 
fication of  £2,500  in  real  property,  or  £250  a  year  in 
real  property  is  required.  The  electors  are  also  re- 
quired to  have  a  certain  amount  of  property  qualifica- 
tion, —  property  of  the  ratable  value  of  £50  per  annum, 
or  of  the  real  value  of  £1,000.  In  Tasmania,  there  u  no 
property  qualification  for  members  of  the  Legislative 
Council,  but  they  are  elected  by  owners  of  freehold 
property  of  the  value  of  £30  a  year,  or  leasehold  pro- 
perty of  the  value  of  £200.  So  that,  of  the  colonies 
here  mentioned,  the  leading  colonies  possessing  repre- 
sentative institutions,  there  are  three  in  which  mem- 
bers of  the  Legislative  Council  are  nominated  by  the 
Crown,  namely,  Canada,  New  South  Wales,  and  Queens- 
land ;  there  are  two,  Victoria  and  the  Cape,  in  which 
they  are  elected  with  a  property  qualification  for  mem- 
bers ;  and  there  are  two  in  which  they  are  also  elected 
with  a  property  qualification  for  electors,  but  wherein 
no  qualification  is  required  for  members  themselves, 
namely,  Tasmania  and  South  Australia." 


«»  New  Zealand  Pari.  Debates,  vol,  xxix.  p.  248.     See  further,  as  to 
proposals  to  alter  the  tenure  of  upper  chambers  lu  the  colonies,  />oa7,  p.  521. 


)LONIES. 

or  personal 
New  South 
ed   by  the 
,y  or  other- 
Council  is 
ualification 
Council   is 
Assembly, 
lO  personal 
he  Legisla- 
r  voting  as 
liave  a  pro- 
ualification 
mibly.     In 
)n  a  quali- 
)  a  year  in 
re  also  re- 
y  qualifica- 
3er  annum, 
there  u  no 
egislative 
■  freehold 
ehold  pro- 
le  colonies 
ing  repre- 
lich  mem- 
ed  by  the 
id  Queens- 
in  which 
1  for  mem- 
so  elected 
it  wherein 
lemselves, 


further,  as  to 
,  jjost,  p.  521. 


LOCAL  PARLLVMENTS  AND  POWERS  OF  A  GOVERNOR.     475 


Constitu- 
tional 
powers 


So  freely  has  the  principle  of  local  self-government  Local  le- 
been  conceded  in  regard  to  the  composition  and  SclinaS! 
constitution  of  the  legislative  chambers,  that,  by  the 
British  North  America  act,  the  local  legislatures  in 
the  Canadian  provinces  are  empowered  to  amend 
their  constitutions  at  will,  except  as  regards  the  office 
of  lieutenant-governor,P  a  liberty  of  which  some  of  the 
provincial  legislatures  have,  as  above  mentioned,  already 
availed  themselves,  by  the  abolition  of  a  second  or 
upper  chamber,  and  other  provinces  are  contemplating 
ii,  similar  reform. 

But  whether  constituted  by  nomination  or  election, 
the  upper  house  in  every  British  colony  is  established 
for  the  sole  purpose  of  fulfilling  therein  "  the  legisla-  JJyuJ^^"^'^ 
tive  functions  of  the  House  of  Lords,"  whilst  the  lower 
house  exercises  within  the  same  sphere  "  the  rights 
and  powers  of  the  House  of  Commons."  "^  It  is,  there- 
fore, most  desirable  tlu't  in  general  persons  should  be 
chosen  as  members  of  an  upper  legislative  chamber 
who  already  possess  some  measure  of  parliamentary 
experience  and  ability,  besides  being  otherwise  quali- 
fied for  such  honourable  service. 

It  is  only  as  a  legislative  body  that  the  upper  house 
in  any  colony  can  claim  identity  with  the  House  of 
Lords.  No  kindred  institution  created  by  statute  can 
be  the  counterpart  of  that  august  and  venerable 
chamber,  either  in  respect  to  its  unique  position  in 
the  English  political  system,  or  in  the  dignity  and 
eminent  personal  qualities  for  which  its  individual 
members  are  usually  conspicuous.  The  adoption  by  a 
colonial  upper  chamber  of  the  peculiar  forms  of  parlia- 
mentary procedure  \;hich  regulate  the  practice  of  the 
House  of  Lords,  is  indeed  a  suitable  method  of  marking 
a  difference   between    themselves    and    the    popular 


I 


) 


\i 


1. 


5'f 


P  British  North  America  Act,  1867,  sec.  92. 
1  See  ante,  p.  31. 


■<""^i 


476       PARLIAMENTARY  GOVERNMENT  IN   THE  COLONICS. 

branch.  But  in  no  other  way  should  a  colonial  senate 
or  legislative  council  invite  a  comparison  between 
themselves  and  the  time-honoured  hereditary  House  of 
Peers.  It  is  in  order  to  discountenance  such  preten- 
sions, and  to  assign  to  the  upper  house  in  a  colonial  sys- 
tem its  true  place  as  exclusively  a  legislative  institution, 
and  not  as  an  aristocratic  body  clothed  with  personal 
privileges,  that  the  Imperial  Piirliameut  has  pointed  to 
"  the  Commons  House  of  Parliament  of  the  United  King- 
dom," as  being  equally  the  example  to  the  Senate  or 
Legislative  Council,  as  well  as  to  the  Representative 
Defined  Assembly,  of  the  proper  extent  and  limitation  of  the 
by  statute,  nriyileges,  immunities,  and  powers,  to  be  defined  on 
behalf  of  each  house  by  a  statute  to  be  locally  passed 
for  that  purpose.' 

Pursuant  to  such  imperial  statutes,  which  authorize 
certain  colonial  legislatures,  under  an  expressed  limita- 
tion, to  define  their  own  powers  and  privileges  by  an 
act  to  be  passed  for  that  purpose,"  the  parliaments  of 
New  Zealand  and  of  Canada  have  severally  legislated 
so  as  to  confer  upon  both  their  legislative  chambers 
"  the  like  privileges,  immunities,  and  powers  "  as  were 
actually  "  enjoyed  and  exercised  by  the  Commons 
House  of  Pailiament  of  the  United  Kingdom." 

In  the  case  of  New  Zealand,  the  law  was  qualified  by 
the  addition  of  the  words,  "  so  far  as  the  same  are  not 
inconsistent  with  or  repugnant  to"  the  "constitutional 
act"  of  the  colony,*  a  proviso  which  does  not  appear  in 
the  Canadian  statute.**  The  addition  of  this  proviso, 
however,  does  not  materially  affect  the  question  in  its 
constitutional  aspect. 

But  neither  the  New  Zealand  nor  the  Canadian  laws 
can  be  so  construed  as  to  warrant  a  claim  by  the  upper 


»■  British   North    America    Act,  *  New    Zealand     Parliamentary 

1867,  sec.  18.  Privileges  Act,  1805,  no.  l-'J,  sec.  4." 

'  See  anle,  p.  466.  ^  Canada  Stats.  1868,  c.  '2o. 


i 


ILONIKS. 

lial  senate 
I  between 
y  House  of 
ch  preten- 
:)lonial  sys- 
institution, 
\\  personal 
pointed  to 
lited  King- 
;  Senate  or 
resentative 
tion  of  the 
defined  on 
ally  passed 

I  authorize 
3sed  limita- 
eges  by  an 
liaments  of 
r  legislated 
chambers 
"as  were 
Commons 
pm. 

ualified  by 
le  are  not 
istitutional 
appear  in 
IS  proviso, 
tion  in  its 

adian  laws 
the  upper 

"I'arliamentary 
[o.  V-\,  sec.  4. 
68,  c.  J]. 


LOCAL  PAT^LIAMENTS  AND  I'OWEIIS  OF  A  GOVERNOR.      477 

chambers  of  either  parliament  to  equal  rights  in  matters  Rijjhts  of 
of  aid  and  supply  to  those  wliich  are  "  enjoyed  and  hoLsos  in 
exercised  by  the  Commons  House  of  Pa'.'liament  of  the  ^^w^y- 
United  Kingdom ; "  for  such  a  claim,  if  insisted  upon, 
would,  to  a  like  extent,  derogate  from  and  diminish  the 
constitutional  rights  of  the  representative  chamber. 

The  Victoria  Constitution  Act,  1855,  sec.  50,  and 
the  British  North  America  Act,  18G7,  sec.  53,  seve- 
rally declare  that  "  bills  for  appropriating  any  part 
of  the  public  revenue,  or  for  imposing  any  tax  or  im- 
post, shall  originate  in  the  .fA:jsembly  or]  House  of 
Commons."  No  further  definition  of  the  relative  pow- 
ers of  the  two  houses  is  ordinarily  .aado  by  any  statute. 
But  constitutional  practice  goes  much  farther  than  this. 
It  justifies  the  claim  of  the  Imperial  House  of  Commons 
(and  by  parity  of  reasoning  of  all  representative  cham- 
bers framed  after  the  model  of  that  lious*)  to  a  general 
control  over  public  revenue  and  expenditure,  a  control 
which  has  been  authoritatively  defined  in  the  following 
words :  "  All  aids  and  supplies,  and  aids  to  his  Majesty 
in  Parliament,  are  the  sole  gift  of  the  Commons,  and  it 
is  the  undoubted  and  sole  right  of  the  Commons  to 
direct,  limit,  and  appoint  in  such  bills  the  ends,  pur- 
poses, considerations,  conditions,  limitations,  and  qualifi- 
cations of  such  grants,  tvhich  ought  not  to  be  changed  or 
altered  hy  the  House  of  Lords'^ " 

This  parliamentary  principle,  moreover,  has  been  ge- 
nerally. If  not  universally,  admitted  in  all  self-govern- 
ing British  colonies  by  the  adoption  in  both  legislative 
chambers  of  standing  orders  which  refer  to  the  rules, 
forms,  usages,  and  practices  of  the  Imperial  Parliament 
as  the  guide  to  each  house  in  cases  unprovided  for  by 
local  regulations. 

In  1872,  a  difference  arose  between  the  two  houses  of  the 


^  Resol.  House  of  Comuious,  July  3, 1678.    And  see  Todd.  Pail.  Govt. 
vol.  i.  p.  458. 


I  !] 


I 


I  *^i 


1 


478      PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


Contro- 
viTsy  in 
Nt'w  Zea- 
land. 


New  Zealand  legislature,  as  to  the  statutory  right  of  the  Legis- 
lative Council  to  amend  bills  of  supply.  The  Council  contended 
that  the  New  Zealand  "parliamentary  privileges  act  of  1865  " 
had  placed  both  houses  upon  an  equal  footing  in  respect  to 
money  bills,  and  empowered  them  to  amend  such  bills  as 
freely  as  other  measures.  The  Assembly  resented  this  pre- 
tension, as  being  an  unconstitutional  encroachment  upon  their 
peculiar  privileges.      Unable  to  agree,  by  mu  ,nsent  a 

case  was  prepared  for  the  opinion  of  the  law  otlicers  of  the 
Crown  in  England,  which  was  forwarded  to  her  Majesty's 
secretary  of  state  for  the  colonies  by  the  governor. 

In  due  course,  a  reply  was  received  from  these  eminent 
legal  functionaries,  which  was  transmitted  to  the  governor 
for  the  information  of  the  colonial  legislature,  and  is  as  fol- 
lows :  *  — 


The  Law  Officers  of  the  Crown  to  the  Earl  of  Kimherley. 

Temple,  June  18,  1872. 

My  Lord,  —  "VVe  are  honoured  with  3'our  Lordship's  com- 
mands signified  in  Mr.  Holland's  letter  of  the  12th  instant, 
stating  that  he  was  directed  by  your  Lordship  to  acquaint  us 
that,  a  difference  having  arisen  between  the  Legislative  Council 
and  House  of  Assembly  of  New  Zealand  concerning  certain 
points  of  law  and  privilege,  it  was  agreed  that  the  questions 
in  dispute  should  be  referred  for  the  opinion  of  the  law  offi- 
cers of  the  Crown  in  England. 

That  he  (Mr.  Holland)  was  accordingly  to  request  us  to 
favour  your  Lordship  with  our  opinion  upon  the  accompanying 
case,  which  had  been  prepared  by  the  managers  of  both 
houses. 

In  obedience  to  3'our  Lordship's  commands,  we  have  the 
honour  to  report,  — 

(1.)  We  are  of  opinion  that,  independently  of  "  the  parlia- 
mentary privileges  act,  1865,''  the  Legislative  Council  Avas 
not  constitutionally  justified  in  amending  "the  pa3'ments  to 
provinces  bill,  1871,"  by  striking  out  the  disputed  clause  28. 
We  think  the  bill  was  a  money  bill,  and  such  a  bill  as  the 
House  of  Commons  in  this  country  would  not  have  allowed 


*  Xew  Zealand  Assam.  Papers,  1872,  appx.  A.  no.  1,  h.  p.  6.    And  see 
New  Zealand  Pari.  Debates,  Sept.  3,  1872. 


)LONIES. 

of  the  Legis- 
cil  contended 
act  of  1865  " 
in  respect  to 
nich  bills  as 
ted  this  pre- 
nt  upon  their 
insent  a 
fticers  of  the 
ler  Majesty's 
tr. 

hese  eminent 
the  governor 
md  is  as  fol- 


Kimherley. 

,  June  18,  1872. 
irdship's  com- 
12th  instant, 
0  acquaint  us 
ative  Council 
srning  certain 
the  questions 
the  law  oflQ- 

request  us  to 
.cconipanying 
gers  of  both 

we  have  the 

"  the  parlia- 
Council  Avas 
pa3'ments  to 
3d  clause  28. 
a  bill  as  the 
have  allowed 

I.  p.  6.   And  see 


LOCAL  PARLLVMENTS  AND  POWERS  OF  A  GOVERNOR.     479 

to  be  amended  by  the  House  of  Lords ;  and  that  tlie  limita- 
tion proposed  to  be  placed  by  the  Legislative  Council  on  bills 
of  aid  or  supply  is  too  narrow,  and  would  not  be  recognized 
by  the  House  of  Commons  in  England. 

(2.)  We  are  of  opinion  that  "  the  i)arliainentary  privileges 
act,  1865,"  does  not  confer  on  the  Legislative  Council  any 
larger  powers  in  this  respect  than  it  would  otherwise  have 
possessed.  We  think  that  this  act  was  not  intended  to  affect, 
and  did  not  affect,  the  legislative  powers  of  cither  house  of 
the  legislature  in  New  Zealand. 

(3.)  We  think  that  the  claims  of  the  House  of  Representa- 
tives, contained  in  their  message  to  the  Legislative  Council, 
are  well  founded  ;  subject  of  course  to  the  limitation  that  the 
Legislative  Council  have  a  perfect  right  to  reject  any  bill 
passed  by  the  House  of  Representatives  having  for  its  object 
to  vary  the  management  or  appropriation  of  money  prescribed 
by  an  act  of  the  previous  session. 

We  have,  &c., 

J.  D.  Coleridge. 
G.  Jessel. 

The  Right  Hon.  the  Earl  of  Kimberley. 

This  opinion  is  a  direct  and  unimpeachable  settlement  of 
the  point  at  issue ;  and  one  that  is  eciually  applicable  in  the 
interpretation  of  the  Canadian  statute  of  1868. 

The  relative  rights  of  both  houses  in  matters  of  aid 
and  supply  must  be  determined,  in  every  British  colony, 
by  the  ascertained  rules  of  British  constitutional  prac- 
tice. The  local  acts  upon  the  subject  must  be  construed 
in  conformity  with  that  practice  wherever  the  imperial 
polity  is  the  accepted  guide.  A  claim  on  the  part  of  a 
colonial  upper  chamber  to  the  possession  of  equal  rights 
with  the  Assembly  to  amend  a  money  bill  would  be 
inconsistent  with  the  ancient  and  undeniable  control 
which  is  exercised  by  the  Imperial  House  of  Commons 
over  all  financial  measures.  It  is,  therefore,  impossible 
to  concede  to  an  upper  chamber  the  right  of  amending 
a  money  bill  upon  the  mere  authority  of  a  local  statute 
when  such  act  admits  of  beino;  construed  in  accordance 


British 
practice 
the  guide. 


Ui 


'  '    \'i 


it 


V  I 


0 


480       I'AULIAMENTAUY  GOVEHNMENT  IN  THE  COLONIES. 


i;p, 


Claims  of 
t'k'ctivo 
iipjur 
chamhcrs 
ill  supply. 


with  the  well-understood  laws  jiiid  usages  of  the  Lnpo- 
rial  Parliament." 

In  certain  British  colonies  —  as,  for  example,  in  South 
Australia,  Tasmania,  Victoria,  and  tl)e  Cape  of  (jood 
Hope  —  the  Legislative  Council  is  elective,  whilst  gene- 
rally the  system  of  nomination  prevails.  The  elective 
councils  have  plausibly  urged  that —  in  accordance  with 
the  practice  in  the  United  States,  where,  in  Congress, 
and  in  the  different  state  legislatures,  while  the  consti- 
tution requires  that  tax  bills  shall  "originate  in  the  lower 
branch,  it  is  customary  to  provide  that  the  Senate  or 
first  branch  may  concur  therein  with  amendments,  as 
in  other  bills  ^  —  they  ought  to  be  at  liberty  to  propose 
amendments  to  bills  of  supply.  In  South  Australia, 
and  in  Tasmania,  this  claim  has  been  partially  allowed 
by  the  lower  house  ;  but  in  Victoria  the  strictest  limita- 
tion of  the  powers  of  the  upper  chamber  has  been  insist- 
ed upon  (as  will  be  presently  shown),  in  conformity  with 
the  constitutional  practice  of  the  Imperial  Parliament. 

In  South  Australia  the  Legislative  Council  has  denied 
to  the  Assembly  any  exclusive  rights  over  money  bills, 
—  except  the  right  of  originating  such  measures, — 
upon  the  ground  that  they  were  as  much  representa- 
tives of  the  people  as  the  other  chamber/  But  in 
November,  1857,  both  houses  came  to  an  agreement, 
by  which  the  right  of  making  certain  amendments  to 
supply  and  tax  bills —  though  not  to  the  money  clauses 
therein  —  was  acknowledged.  It  was  further  under- 
stood that  the  Legislative  Council  might  offer  suggcstmis 


*  See,  to  the  same  effect,  the  de- 
spatch of  the  colonial  secretary  to 
the  governor  of  New  Zealand,  of 
March  25, 1855,  before  thepassingof 
the  parliamentary  privileges  act  : 
Commons  Papers,  1860,  vol.  xlvi. 
p.  466.  For  a  statement  of  the  re- 
spective constitutional  rights  of  the 
two  houses  in  matters  of  supply,  see 


a  report  of  a  committee  of  the  Leg. 
Assem.  of  Victoria,  on  Oct.  ;50, 
1877;  Votes  and  Proceed.  L.  A. 
Vict.  1877-78,  vol.  i.  pp.  192,  251. 

y  Gushing,  Lex  Parliamentaria 
Americana,  p.  891. 

'  See  South  Austral.  Pari.  Pro- 
ceed. 1857-58,  vol.  i.  passim,  vol.  ii. 
nos.  71  aud  101. 


,. 


COLONIES. 

f  the  Iinpc- 

plo,  in  South 
])0  of  (^ood 
Avhilst  geno- 
riie  elective 
)r(1{iii('e  with 
in  Congress, 
!  the  consti- 
in  the  h)\vei' 
e  Senate  or 
3n(hnents,  as 
y  to  proposo 
:h  Australia, 
ially  allowed 
'ictest  limita- 
3  heen  insist- 
iforniity  with 
Parliament, 
il  has  denied 
money  bills, 
measures,  — 
1  representa- 
er/     But   in 
I  agreement, 
endments  to 
loney  clauses 
rther  under- 
fer  siiggestmis 


ittee  of  the  Leg. 
a,  on    Oct.    30, 
Proceed.    L.    A. 
.  i.  pp.  192,  251. 
Parliameutaria 

stral.  Pari.  Pro- 
i.  passim,  vol.  ii. 


LOCAL  PARLIAMENTS  AND  POWERS  OF  A  GOVERNOR.     481 

for  the  amendment  of  such  parts  of  supply  or  tax  bills 
as  dealt  with  money  or  taxation.  This  rrrangenient 
was  afterwards  carried  out,  at  least  for  a  number  of 
years,  with  mutual  satisfaction.* 

In  the  session  of  1876,  the  Legislative  Council  of  South  Dispute  in 
Australia   suggested   that   the  Assembly  should   strike  out  ^""1''  ■• 
from  a  public  purposes  loan-bill  items  amounting  to  about  on  supply 
£  1 25,000,  for  certain  local  improvements,  but  the  Assembly  '"'^"^'"• 
refused  to  concur  in  this  suggestion.     The  Legislative  Coun- 
cil, by  a  bare  majority  of  one,  decided  not  to  withdraw  their 
suggested  amendments,  and  the  bill  was  dropped.     Where- 
upon the  government  introduced  another  bill,  from  which 
they  omitted  the  items  objected  to  by  the  Council ;  and  this 
bill  was  passed,  without  difficulty  by  both  houses.** 

In  1877,  however,  a  more  serious  disagreement  occurred 
in  this  colony.  On  June  12,  inquiry  was  made  of  ministers 
in  the  Legislative  Council,  in  regard  to  certain  rumoured 
preparations  for  the  erection  of  new  parliament  buildings. 
In  reply,  the  Council  was  informed  that  the  government  con- 
templated the  building  of  a  new  assembly  chamber,  as  part 
of  a  proposed  design  for  the  better  accommodation  of  both 
houses,  but  that  no  money  had  yet  been  voted  for  the  pur- 
pose. 

Upon  which,  on  July  5,  the  Legislative  Council  resolved, 
that  the  action  of  government,  in  deciding  upon  a  site,  and 
commencing  to  build  new  houses  of  parliament,  without  the 
(previous)  sanction  of  both  branches  of  the  legislature  is  un- 
constitutional, and  does  not  meet  with  the  approval  of  this 
Council. 

A  private  member  then  gave  notice  of  a  motion  for  an 
address  to  the  administrator  of  the  government  to  represent 
the  right  of  the  Legislative  Council  to  be  consulted  on  this 
subject.    Sir  Henry  Ayers  (chief  secretary  and  leader  of  the 


•  South  Austral.  Pari.  Proceed,  the  rejection  by  the  Council  of  bills 

1874,  vol.  i.  pp.  27,  33,  51.     As-  passed  by  the  Assembly :  "  The  Co- 

sembly  Votes,  ibid.    pp.   160,  181.  lonies,"  Auj?.  30,  1879,  p.  6. 

Ihid.  1877  (Assembly  Papers),  no.  »>  Ibid.  1876,  pp.  125-128,  131. 

92.      At  the  present  time  (1879)  "The  Colonies,"  newspaper,  Jan. 

a  dead-lock    has   been   threatened  20,  1877,  p.  2. 
between  the  two  houses,  owing  to 

31 


^'5ir- 


482       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

governmont  in  this  house)  then  gave  notice  of  a  motion  to 
resolve,  that  it  is  desirable  to  proceed  immediately  with  the 
election  of  the  new  assembly  "i,  imber. 

Oil  July  25,  before  the  aforementioned  notices  were  dis- 
cussed, it  was  resolved  that  the  chief  secretary,  by  ignoring 
the  constitutional  rights  of  this  Council,  and  by  his  conduct 
generally  with  reference  to  the  proposed  new  parliament 
buildings,  has  lost  the  confidence  of  this  Council. 

On  July  31,  in  amendment  to  a  motion  by  the  chief  secre- 
tary that  the  Council,  at  its  rising,  should  adjourn  to  the 
following  day,  it  was  resolved,  that  this  house  would  not  pro- 
ceed to  business  so  long  as  the  government  is  represented  in 
the  chamber  by  a  member  in  whom  it  had  no  confidence ; 
and  therefore  that  business  be  postponed  for  a  week,  to  afford 
the  ministry  an  opportunity  of  changing  their  representative. 
No  such  change  having  taken  place,  further  adjournments 
were  made,  for  a  week  at  a  time,  until  Aug.  28. 

On  that  day  a  motion  to  resolve,  that  the  Council  insists 
upon  its  rights  to  be  forthwith  consulted  upon  the  necessity 
and  expediency  of  building  new  houses  of  parliament  at  the 
present  time,  was  negatived  upon  the  previous  question. 
The  Council  then  adjourned. 

On  Aug.  29,  it  was  resolved,  that  this  Council,  while  ob- 
jecting to  the  leadership  of  the  present  chief  secretary,  will 
live  Coun-  proceed  with  business,  and  directs  that  all  public  bills  re- 
to  if'Tri"  ceived  from  the  Assembly  be  placed  in  charge  of  the  Hon. 
vi-tc  mem-  William  Morgan,  a  private  member  of  the  house.  The  coun- 
cil then  adjourned  until  Sept.  4,  and  afterwards  until  Sept.  11 
and  Sept.  18,  doing  some  business  at  each  sitting. 

The  chief  secretary  denied  the  right  of  the  Legislative 
Council  to  take  the  conduct  of  public  business  out  of  his 
hands  without  the  consent  of  the  governor ;  but  the  speaker, 
on  Sept.  18,  presented  a  written  statement,  confirmatory  of 
a  previous  ruling,  justifying  this  proceeding ;  after  which  Mr. 
Morgan  assumed  the  leadership.  The  council  then  adjourned 
until  Sept.  25. 

On  Sept.  27,  it  was  moved  that  an  address  of  remonstrance 
be  presented  to  the  administrator  of  the  government.  But, 
being  a  complicated  question,  it  was  resolved  to  consider  this 
motion  in  separate  paragraphs.  On  Oct.  4,  the  address  was 
agreed   to,  and  ordered   to   be   presented   to   the  governor 


-r 


Leader- 
ship in 
Legisla 


l)er. 


OLONIES. 


LOCAL  PARLIAMENTS  AND  POWERS  OF  A  GOVERNOR.     483 


i'.ii 


a  motion  to 
;ely  with  the 

les  were  dis- 
by  ignoring 
his  conduct 

f  parliament 

!  chief  secre- 
|ourn  to  the 
)uld  not  pro- 
jpresented  in 
confidence ; 
3ek,  to  afford 
presentative. 
tdjournmentS' 

ouncil  insists 
the  necessity 
ament  at  tlie 
>us  question. 

il,  while  ob- 
cretary,  will 
jlic  bills  re- 
of  the  Hon. 
The  coun- 
ntil  Sept.  11 

Legislative 
i  out  of  his 
the  speaker, 
firmatory  of 
3r  which  Mr. 
Ml  adjourned 

emunstrance 
raent.  But, 
3onsider  this 
address  was 
le   governor 


(meanwhile,  on  Oct.  3,  the  house  was  informed  that  Sir  Wil- 
liam Jervois  had  been  appointed  governor).  It  represented 
that  ministers  had  begun  to  erect  new  parliament  buildings, 
pursuant  to  a  resolution  of  the  house  of  Assembly,  passed 
Oct.  13,  1876,  but  without  the  necessary  appropriation  for 
such  an  expenditure,  as  required  by  the  constitution  act.  The 
works  were  afterwards  stopped ;  but  the  Assembly,  on  June 
13,  1877,  had  resolved  that  they  ought  to  be  immediately 
resumed,  which  wns  done  accordingly ;  though  no  money 
had  3'^et  been  voted,  nor  h.xl  the  consent  of  the  Council  been 
given  to  this  expenditure.  So  far  back  as  in  1864,  the  Coun- 
cil had  addressed  the  governor,  asserting  its  equal  constitu- 
tional right  with  the  Assembly  to  be  consulted  upon,  and  to 
give  or  withhold  its  approval  to,  every  grant  or  appropriation 
of  public  money.  In  reply.  Governor  Daly  had  endorsed  this 
principle,  and  expressed  his  desire  to  conform  the  colonial 
practice  as  far  as  possible  to  that  of  tlie  Imperial  Parliament, 
by  substituting  supply  bills  for  resolutions  of  the  Assembly, 
which  heretofore  had  been  deemed  a  sufficient  warrant  for 
public  expenditure. 

The  address  proceeded  to  recite  the  resolutions  previously 
passed  by  the  Council  on  this  question,  and  in  regard  to  the 
"  defiant  and  discourteous  "  action  of  the  leader  of  the  go- 
vernment in  the  Council  above-mentioned.  It  stated  their 
willingness  to  proceed  with  all  pressing  legislation,  provided 
that  the  business  before  the  Council  sliould  be  in  charge  of 
a  leader  in  whom  they  had  confidence. 

Furthermore,  they  called  the  attention  of  the  governor  to 
certain  proceedings  in  the  Assembly  which  showed  tliat  mi- 
nisters denied  the  right  of  the  Council  to  determine  who  should 
act  as  leader  of  the  house. 

The  Council  liad  thus  far  refrained  from  expressing  a  want 
of  confidence  in  the  whole  ministry,  but  they  now  sul)initted 
that  tlie  premier  could  not  continue  to  treat  with  indifference 
the  want  of  confidence  the  Council  had  expressed  in  the  chief 
secretary,  without  detriment  to  the  public  interests,  and  great 
injury  to  the  working  of  responsible  government.  Api)re- 
hending  that  the  ministerial  policy  tended  to  the  complete 
subordination  of  the  Council  to  the  Assembly,  and  to  bring 
about  a  collision  bctw(>en  the  two  houses,  thereby  coercing 
the  Council  with  the  weight  of   the  Assembly's   authority, 


H'; 


!  7? 


I 


I 


484     PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


Irregular 
action  of 
Legisla- 
tive Coun- 
cil on  the 
leader- 
ship. 


they  concluded  by  requesting  the  goverror  to  take  such  steps 
as  he  might  deem  expedient  in  the  present  crisis. 

Upon  the  receipt  of  this  address,  on  the  9th  of  October,  the 
governor  promised  that  the  important  questions  referred  to 
therein  siiould  receive  his  best  attention.  Upon  the  23d  of 
October,  the  governor  sent  down  a  formal  reply.  He  assured 
the  Council  of  his  earnest  desire  to  preserve  inviolate  their 
constitutional  rights  and  privileges,  but  expressed  his  disap- 
proval of  their  action  in  taking  the  conduct  of  public  business 
from  a  minister  of  the  Crown,  and  placing  it  in  the  hands  of 
a  private  member.  This  step  he  regarded  as  "opposed  to 
parliamentary  practice,  and  detrimental  to  the  privileges  of 
the  Crown,  as  well  as  to  the  integrity  of  parliamentary  pro- 
cedure." Ministers  had  assured  him  of  their  sincere  desire  to 
avoid  a  collision  between  the  two  houses,  that  their  policy 
had  no  tendency  to  subordinate  the  Legislative  Council  to 
the  Assembly,  and  that  they  felt  it  to  be  not  only  their  in- 
terest but  their  paramount  duty  to  use  all  legitimate  means 
to  promote  harmony  between  both  houses.  They  had,  accord- 
ingly, stopped  the  progress  of  the  works  objected  to,  and 
would  incur  no  further  expenditure  thereon  until  due  provi- 
sion had  been  made  by  parliament. 

Meanwhile,  the  House  of  Assembly  had  taken  up  the  ques- 
tion. On  Oct.  17,  the  Assembly  resolved,  that  this  house 
disapproves  of  the  action  of  the  ministry  in  the  conduct  of  its 
business,  as  needlessly  tending  to  provoke  a  collision  between 
the  two  houses  of  parliament."  This  vote  led  to  the  i-esigna- 
tion  of  ministers,  which  took  place  on  Oct.  23,  —  the  very 
day  on  which  the  governor's  message  in  reply  to  the  address 
of  the  Legislative  Council  was  communicated  to  that  body. 

On  Oct.  30,  both  houses  met,  and  the  new  ministry  ap- 
peared in  their  places.*^      The  office  of  chief  secretary  had 


"  This  resolution  was  passed  by 
the  casting  vote  of  the  speaker.  The 
speaker  gave  his  vote  without  ex- 
pressinpf  any  opinion  on  the  ques- 
tion before  the  house,  but  upon  the 
f)rinciple  which  had  always  guided 
lim  when  a  vote  of  confidence  in 
ministers  was  pending,  namely, 
"  that  when,  on  a  vote  of  want  of 
confidence,  a  ministry  do  not  com- 
mand a  majority,  it  is  the  duty  of 


the  speaker  to  vote  with  the  ayes." 
Votes  of  Assembly,  South  Australia, 
1877,  p.  236.  And  ibid.  1871,  p.  226. 
•^  In  South  Australia,  and  like- 
wise in  New  Zealand,  the  law  per- 
mits members  of  either  house  to 
accept  ministerial  office  without  be- 
ing required  to  vacate  their  seats 
and  offer  themselves  for  re-electiou. 
See  ante,  p.  47. 


OLONIES. 

ke  such  steps 

• 

'  October,  the 
s  referred  to 
n  the  23(1  of 
He  assured 
iviolate  their 
ed  his  disap- 
iblic  business 
the  hands  of 
"opposed  to 
privileges  of 
imentary  pro- 
cere  desire  to 
:  their  policy 
'6  Council  to 
only  their  in- 
timate means 
Y  had,  accord- 
ected  to,  and 
;il  due  provi- 

up  the  ques- 

at  this  house 

onduct  of  its 

sion  between 

the  resigna- 
3,  —  the  very 
o  the  address 

that  body, 

ministry  ap- 
lecretary  had 

vith  the  ayes." 
south  Australia, 
(1. 1871,  p.  '228. 
ralia,  and  like- 
d,  the  law  per- 
eithpr  lK)Use  to 
flee  without  be- 
ate  their  seats 
;  for  re-electiou. 


LOCAL  PARLIAMENTS  AND  POWERS  OF  A  GOVERNOR.     485 

been  conferred  upon  Mr.  Morgan,  the  person  who,  whilst 
merely  a  private  member,  had  been  charged  by  the  Legislative 
Council  to  act  as  leader  of  the  house,  instead  of  Sir  Henry 
Ayers.  A  notice  had  been  put  upon  the  Council  paper,  for 
the  adoption  of  a  further  resolution,  justifying  the  action  of 
the  Council  in  the  matter  of  the  leadership,  and  expressing 
regret  that  ministers  had  advised  the  governor  to  disapprove 
of  the  same.  But,  on  Nov.  13,  this  intended  motion  was,  by 
leave,  withdrawn. 

On  Nov.  6,  in  the  House  of  Assembly,  an  item  in  the 
estimates  for  a  vote  of  ten  thousand  pounds  towards  the  new 
parliament  buildings  was  .struck  out  on  motion  of  a  minister 
of  the  Crown.  And  on  Nov.  8,  a  government  bill  was  in- 
troduced, to  authorize  the  construction  of  new  parliament 
buildings.  On  Nov.  15,  this  bill  was  passed,  and  sent  up 
for  the  concurrence  of  the  Legislative  Council. 

On  Nov.  27,  in  amendment  to  a  motion  for  the  second 
reading  of  the  new  parliament-buildings  bill,  the  Council  re- 
solved that  the  bill  be  not  proceeded  witli,  but  that  the 
governor  be  requested  to  appoint  a  commission  to  inquire 
into  and  report  upon  the  necessity  for  the  proposed  new 
buildings.  Two  days  after,  however,  on  motion  of  the  chief 
secretary  (Mr.  Morgan),  this  resolution  was  rescinded,  and 
the  parliament-buildings  bill  read  a  second  time.  It  was 
afterwards  passed,  with  an  amendment,  which  was  amended 
by  the  Assembly.  The  Council  agreed  to  this  amendment, 
and  the  bill  became  law. 

Thus  the  protracted  difficulties  between  the  two  houses,  Disputes 
upon  this  question  of  supply,  were  brought  to  a  happy  termi-  t.vohouses 
nation.     The  governor,  in  his  speech  on  proroguing  parlia-  settled. 
ment,  on  Dec.  21,  congratulated    both   houses  that,  by  the 
exercise  of  a   spirit  of  conciliation  and  by  mutual   conces- 
sions, the  disputes  which  had  occurred  in  the  early  part  of  the 
session  had  been  satisfactorily  adjusted  ;  and  that  they  had 
thus  avoided  the  disastrous  consequences  which  must  inevi- 
tably have  ensued  from  any  serious  collision  between  the  two 
branches  of  the  legislature." 

In  Tasmania,  the  elective  Legislative  Council  is  also  per- 


! 


i: 


'  I 


i 


4 


•  South  Australia  Pari.  Proceed.  1877,  vol.  i.  passitn.    But  see  post, 
p.  523. 


Tasmania 
Legisla- 
tive Coun- 
cil in  mat- 
ters of  sup- 
ply- 


n 


486       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

mitted  to  amend  money  bills,  even  the  annual  bills  of  appito- 
priation/ 

On  May  13,  1879,  the  Legislative  Council  of  Tasmania,  on 
motion  for  the  second  reading  of  the  supply  bill,  resolved, 
that,  inasmuch  as  this  bill  provides  for  an  expenditure  far 
in  excess  of  the  probable  revenue  for  the  current  year,  the 
Council  deem  it  inexpedient  to  authorize  any  appropriation 
beyond  what  may  be  necessary  for  the  public  expenditure  of 
the  first  six  months  of  the  said  year.  The  supply  bill  was 
accordingly  amended  to  this  effect.  This  proceeding  led  to 
much  debate  between  the  two  houses.  Ultimately,  the  As- 
sembly unanimously  agreed  to  accept  a  limitation  of  the  grant 
of  supply  to  7ihie  months  of  the  current  year.* 

The  Council  adhered  to  their  amendment  of  the  sui)ply 
bill ;  but  agreed,  if  the  Assembly  should  accept  this  amend- 
ment, to  receive  favourably  a  further  supply  bill,  for  the 
additional  period  whicli  ministers  had  requt'sted,  in  order 
that  they  might  reconsider  their  financial  propositions.  In 
reply,  the  Assembly,  anxious  to  preserve  amicable  relations 
with  the  other  house,  expressed  their  willingness  to  accept 
a  supply  for  eight  months,  but  declined  to  embody  tliis  in- 
tention in  a  separate  bill.  Whereupon,  the  Legislative  Council 
sent  a  message  to  the  Assembly,  adhering  to  their  former 
offer,  and  justifying  their  course  by  a  reference  to  parlia- 
mentary practice.''  The  Council,  however,  afterwards  ac- 
cepted the  amendment  made  by  the  Assembly  to  their  own 
amendment ;  and  so  the  ai)propriation  bill  was  passed,  pro- 
viding supplies  for  eight  months  only  of  the  current  year, 
of  which  period  nearly  six  months  had  expired  before  the 
royal  assent  was  given  to  the  bill. 

The  Council,  in  agreeing  to  this  compromise,  transmitted  a 
resolution  to  the  governor,  in  explanation  of  the  course  they 
had  taken,  from  which  it  appeared  that  considerable  arrears 
of  debt  had  accumulated  ;  for  wliich,  as  vvell  as  to  meet  accru- 
ing liabilities,  it  was  imperative  that  provision  should  be 
made  ;  that  the  Legislative  Council  had  been  assured  by 
ministers  that,  before  the  expiration  of  the  period  for  which 
supply  had  been  granted,  they  would  be  prepared  with  mea- 


*  Tasmania  Leg.    Council  Jour-    June  3, 1879.    And  ministerial  me- 
nals,  1877,  pp.  8!>,  40,  117,  119.  morandum,  ibid.  June  10. 

8  Tasmania  Leg.  Council  Votes,         ^  Ibid.  June  10  and  11,1879. 


COLONIES, 
jills  of  appfo- 

Tasmania,  on 
bill,  resolved, 
penditure  far 
-eiit  year,  the 
appropriation 
xpenditure  of 
ipply  bill  was 
ceding  led  to 
itely,  the  As- 
1  of  the  grant 

f  the  supply 
this  amend- 
bill,  for  the 
;ed,  in  order 
(Ksitions.  In 
ble  relations 
iss  to  accept 
lody  this  in- 
itive  Council 
their  former 
ie  to  parlia- 
terwards  ac- 

0  their  own 
passed,  pro- 

jurrent  year, 

1  before  the 

[•ansmitted  a 
course  they 
able  arrears 
meet  accru- 
L  should  be 
assured  by 
d  for  which 
i  with  mea- 

linisterial  me- 
10. 
111,1879. 


LOCAL  PARLIAMENTS  AND  POWERS  OF  A  GOVERNOR.     487 

sures  calculated  to  meet  the  present  and  accruing  necessities 
of  the  country  ;  that,  while  the  Legislative  Council  had  no 
desire  to  interfere  irregularly  with  the  exercise  of  the  un- 
doubted prerogative  of  the  Crown,  in  the  summoning,  pro- 
roguing, and  dissolving  of  parliament,  yet  they  fully  rel  ^d 
upon  his  Excellency  to  appreciate  their  endeavour  to  arrest 
the  growth  of  financial  embarrassment.' 

On  June  17,  the  governor  replied  to  this  address  by  a  mes- 
sage, wherein  he  "  assures  the  Council  that  parliament  may 
always  rely  upon  his  acting  in  strict  accordance  with  consti- 
tutional usage  and  precedent  in  the  exercise  of  the  powers 
intrusted  to  him  by  the*  Crown."  Two  days  later,  parlia- 
ment (which  had  been  in  session  for  eleven  months)  was 
prorogued  by  proclamation.  Upon  the  reassembling  of 
parliament,  on  Sept.  9,  the  Legislative  Council  adopted, 
on  Sept.  11,  a  protest  against  the  further  delay  in  dealing 
with  the  urgent  public  business  of  the  country,  consequent 
upon  an  intended  adjournment,  for  the  purpose  of  attending 
the  opening  of  the  great  exhibition  in  Sydney. 

Recent  intelligence  from  Tasmania  states  that  there  is  a 
growing  dissatisfaction  in  the  colony  with  the  extensive  pow- 
ers of  control  and  interference  exercised  by  the  Legislative 
Council  in  the  matter  of  supply;  and  that  some  amendment 
of  the  constitution,  in  this  respect,  is  about  to  be  proposed  in 
the  Assembly .J 

In  Victoria,  the  differences  between  the  two  houses,  in  mat- 
ters of  supply,  have  been  of  longer  duration  and  have  been 
prosecuted  with  greater  acrimony  than  in  any  other  colony. 
Several  questions  of  constitutional  importance  arose  during 
the  course  of  this  protracted  controversy.  It  may  be  profita- 
ble, therefore,  to  trace  briefly  the  history  of  these  struggles, 
dwelling  particularly  upon  the  last  contest,  which  began 
in  1877,  and  has  not  yet  been  brought  to  a  satisfactory 
issue. 

From  the  introduction  of  parliamentary  institutions  into  In  1865. 
Victoria,  in  1856,  until  the  year  1865,  the  two  houses  worked 
together,  without  any  serious   disagreement.     In  1865,  the 
first  difficulty  occurred.     There  was  a  vehement  agitation  in 


Disputes 
in  Victo- 
ria. 


;1i| 


'  Tasmania  Leg.  Council  Votes, 
and  ministerial  memorandum,  June 
12  and  13,  1879. 


J  "  The   Colonies,"  newspaper, 
August  1(J,  1879,  p.  1. 


^ 


488       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


;  ':  ts 


In  1867. 


the  colony  in  favour  of  a  change  in  the  financial  policy  of 
government.  It  was  known  that  free-trade  principles  pre- 
vailed in  the  Legislative  Council,  whilst  the  protectionist 
party  had  a  majority  in  the  Assembly.  The  ministry  re- 
modelled the  tariff,  in  the  interest  of  protection,  and  then 
resorted  to  the  unjustifiable  expedient  of  appending  the  new 
tariff  as  "  a  tack "  to  the  annual  appropriation  bill.  The 
Council  indignantly  rejected  this  composite  measure,  as  being 
highly  irregular  and  unparliamentary.  Ultimately,  two  sepa- 
rate bills  were  introduced,  and  each  considered  and  disposed 
of  upon  its  own  merits.  During  the  continuance  of  this  al- 
tercation and  dead-lock  between  the  two  houses,  the  conduct 
of  the  governor  was  marked  by  so  much  indiscretion  as  to 
necessitate  his  recall.  But,  as  we  have  already  noticed  this 
painful  case  in  a  previous  section,''  it  will  be  unnecessary  to 
refer  to  it  again  in  this  place.  Suffice  it  to  say  that  the 
irregular  and  partisan  action  of  Governor  Darling,  on  this 
occasion,  has  been  ever  since  scrupulously  avoided  by  repre- 
sentatives of  the  Crown  in  all  parts  of  the  queen's  do- 
minions. 

The  next  serious  dispute  between  the  two  chambers  in 
Victoria  occurred  in  1867.  The  particulars  of  this  case  have 
likewise  engaged  our  attention.'  It  commenced  by  an  irregu- 
lar attempt  of  the  Assembly  to  vote  a  pecuniary  compensa- 
tion to  ex-Governor  Darling,  for  his  loss  of  office,  owing  to 
his  partisan  zeal  on  their  behalf.  Debarred  by  the  rules  of 
the  colonial  service  from  bestowing  gifts  upon  one  in  the 
service  of  the  Crown,  the  Assembly  took  the  opportunity  of 
his  retirement  from  public  employ  to  vote  his  wife  a  gratuity 
of  £  20,000.  Ministers  obtained  the  sanction  of  the  governor 
to  this  proposal,  as  "  a  formal "  though  necessary  act,  in  the 
initiation  of  a  money  grant.  But  the  Legislative  Council, 
who  judged  differently  as  to  the  propriety  of  Sir  Charles 
Darling's  conduct  as  governor,  would  not  agree  to  the  pro- 
posed reward.  The  obnoxious  item  was  included  in  the  ap- 
propriation bill,  which  was  accordingly  reject?ed  by  the  upper 
house.  Another  "  dead-lock  "  ensued,  and  various  ministerial 
changes  and  complications  followed.  At  length  peace  was 
unexpectedly  restored  by  the  resolution  of  Sir  Charles  Dar- 


^  See  ante,  p.  103. 


1  See  ante,  p.  112. 


:^^i 


COLONIES. 


LOCAL  PARLIAMENTS  AND  POWERS  OF  A  GOVERNOR.     489 


3ial  policy  of 
•inciples  pre- 
protectionist 
ministry  re- 
)n,  and  then 
ing  the  new 
n  bill.     The 
ure,  as  being 
ly,  two  sepa- 
md  disposed 
B  of  this  al- 
the  conduct 
iretion  as  to 
noticed  this 
necessary  to 
ay  that  the 
ing,  on  this 
ed  by  repre- 
queen's  do- 

3hambers  in 

is  case  have 

y  an  irregu- 

r  compensa- 

e,  owing  to 

he  rules  of 

one  in  the 

(ortunity  of 

a  gratuity 

le  governor 

act,  in  the 

e  Council, 

ir  Charles 

o  the  pro- 

in  the  ap- 

the  upper 

ninisterial 

3eace  was 

arles  Dar- 


t 


ling  to  refuse  the  intended  grant,  either  for  himself  or  his 
family,  on  condition  that  he  should  be  reinstated  in  tlie  ser- 
vice of  the  Crown,  and  allowed  a  pension  as  a  retired  go- 
vernor. 

But  the  evil  was  only  stayed  for  a  time.  In  1877,  fresh  In  1877. 
dissensions  broke  out  between  the  Assembly  and  Legislative 
Council  of  Victoria.  The  strife  raged  with  increasing  bitter- 
ness and  still  exists.  The  gravity  of  the  situation,  and  its 
extreme  complexity,  owing  to  the  various  elements  of  dis- 
traction which  have  arisen  during  this  prolonged  contest,  will 
justify  a  fuller  examination  of  this  case,  than  was  necessary 
in  former  instances  of  a  similar  description. 

The  event  which  gave  rise  to  the  present  dispute  was  the 
introduction,  by  the  Assembly,  of  a  bill  to  renew  an  act  for 
the  payment  of  an  indemnity  to  members  of  the  legislature, 
which  was  about  to  expire.  The  Legislative  Council  had 
always  been  opposed  to  the  principle  of  paying  members  of 
parliament,  but  had,  on  two  or  three  previous  occasions,  re- 
luctantly consented  to  temporary  acts  for  that  purpose.  In 
1877,  a  bill  to  continue  the  practice  for  a  further  term,  was 
sent  up  by  the  Assembly  for  the  concurrence  of  the  upper 
house.  Anticipating  the  probability  of  its  rejection  in  that 
chamber,  an  item  was  placed  in  the  estimates  and  inserted  in 
the  appropriation  bill,  to  provide  for  this  payment  for  the 
current  year.  Regarding  this  proceeding  as  an  attempt  to 
evade  the  consequences  of  the  expected  rejection  of  the  mem- 
bers' indemnity  bill,  the  Council  laid  aside  both  bills.  Ulti- 
mately, however,  this  new  dispute  was  temporarily  settled. 
A  new  appropriation  bill,  without  the  objectionable  item,  was 
introduced  and  passed,  while  the  Council  consented  to  renew 
the  act  for  the  payment  of  members,  during  the  continuance 
of  the  exi-^ting  parliament. 

But  both  houses  were  aroused  to  the  necessity  of  disposing 
of  the  main  question  which  lay  at  the  foundation  of  these 
frequent  disputes ;  namely,  the  constitutional  rights  of  the 
two  chambers  in  matters  of  supply.  Accordingly,  bills  to 
amend  the  constitution  upon  this  point  were  originated, 
and  have  been  warmly  discussed  in  each  chamber,  u:though 
hitherto  without  success. 

Before  noticing  in  detail  the  principal  points  which  were 
urged  on  both  sides,  during  this  last  and  most  vehement 


Wr 


ill 


V\l 


; 


Constitu- 
tional 
points  in 
this  dis- 
pute. 


Position  of 

governor 

in  disputes 

between 

two 

houses. 


490       PARLIAMENTARY  GOVERNMENT  IN  TIIE  COLONIES. 

struggle,  it  may  be  observed  that  the  Legislative  Council, 
though  repeatedly  cliarged  with  pressing  their  rights  to  an 
extremity,  have  uniformly  disclaimed  any  desire  to  assert  a 
right  to  control  financial  legishition.  They  have,  in  fact, 
considered  the  necessity  for  the  repeated  rejection  of  appro- 
priation bills  as  in  itself  an  intolerable  grievance.  They  de- 
clare tliat  they  have  been  compelled  to  have  recourse  to  this 
extreme  proceeding,  from  the  reiterated  assertion  by  the  As- 
sembly of  their  right  to  include  in  appropriation  bills  clauses 
for  taxation,  and  grants  involving  new  and  grave  questions 
of  public  policy,  to  which  the  Council  were  known  to  be 
o^jposed.  The  Assembly  has  furthermore  claimed  the  right, 
upon  their  own  mere  resolution,  to  direct  the  expenditure 
of  public  money;  a  claim  which  is  well  known  to  be  alto- 
gether untenable  and  unconstitutional.™ 

We  will  pow  proceed  to  examine  more  minutely  certain 
questions  of  interest  which  were  brought  prominently  for- 
ward during  the  progress  of  these  contests. 

One  point  of  special  magnitude  in  connection  with  these 
disputes  between  the  two  houses  of  parliament  has  been  the 
attitude  which  it  becomes  the  governor  to  assume,  when  the 
other  branches  of  the  legislature  are  in  collision,  upon  a  ques- 
tion of  privilege,  or  of  their  several  constitutional  rights. 

We  have  elsewhere  seen  that  it  is  the  bounden  duty  of  the 
governor  to  occupy  a  position  of  strict  neutrality  between 
contending  parties  in  politics,  and  of  entire  impartiality  on 
all  party  questions  which  ought  to  be  locally  decided,  "  and 
in  which  neither  the  prerogatives  of  the  Crown  nor  other 
imperial  interests  are  involved."  ^  Upon  such  occasions,  the 
governor  should  refrain,  except  in  the  capacity  of  a  mediator, 
from  all  personal  interference,  until  at  least  he  is  called  upon 
to  do  or  to  sanction  an  act  which  he  might  consider  to  be 
illegal ;  in  which  case,  he  should  promptly  and  authoritatively 
interpose. 

In  the  quarrel  between  the  two  houses  in  Victoria,  in  1877, 
the  governor  (Sir  George  Bowen)  resolved  to  adhere  stead- 
fastly to  this  rule  of  non-intervention  between  the  combat- 
ants.    Accordingly,  when  the  Legislative  Council  info,  aed 


•»  See  ante,  pp.  104,  479. 

n    See  post,  ch.  v. ;  and  Commons  Papers,  1878,  C.2173,  p.  56. 


COLONIES. 

tive  Council, 

rights  to  an 

e  to  assert  a 

ave,  in   fact, 

ion  of  appro- 

e.     Tliey  de- 

aurse  to  this 

n  by  the  As- 

bills  clauses 

ve  questions 

nown  to  be 

d  the  right, 

expenditure 

to  be  alto- 

tely  certain 
inently  for- 

i  with  these 
las  been  the 
3,  when  the 
pon  a  ques- 
rights. 
duty  of  the 

'  between 
irtiality  on 
ided,  ''  and 

nor  other 
asions,  the 

mediator, 
illed  upon 

der  to  be 
jritativeJy 

I,  in  1877, 
3re  stead- 
corn  bat- 
info,  aed 


p.  56. 


LOCAL  PARLLVMENTS  AND  POWERS  OF  A  GOVERNOR.  491 

him  by  address  that  they  deemed  the  inclusion  of  an  item  for 
the  payment  of  members  in  the  annual  bill  of  appropriation 
as  an  attempt  to  coerce  them  in  the  exercise  of  their  legisla- 
tive functions,  the  governor  declined  to  interfere.  In  re- 
porting this  matter  to  the  secretary  of  state,  on  Nov.  26, 1877, 
the  governor  jusptified  his  conduct,  by  citing  from  a  despatch 
written  by  his  predecessor.  Sir  J.  Manners  Sutton  (after- 
wards Lord  Canterbury),  to  the  colonial  secretary,  dated 
Oct.  26,  1867. 

This  despatch  asserts  the  principle  that  while  it  should  be 
the  governor's  "  earnest  desire  to  contribute,  as  far  as  he  can 
properly  contribute,  to  the  removal  of  existing  differences  be- 
tween the  two  houses,  it  is  clearly  undesirable  that  he  should 
intervene  in  such  a  manner  as  would  withdraw  these  differ- 
ences from  their  proper  sphere,  and  so  give  to  them  a  charac- 
ter which  does  not  naturally  belong  to  them,  of  a  conflict 
between  the  majority  of  one  or  another  of  the  two  houses,  and 
the  representative  of  the  Crown."  " 

Governor  Bowen's  conduct,  on  this  occasion,  was  more- 
over in  complete  accordance  with  constitutional  practice  in 
the  mother  country.  In  the  memorable  contest  between  the 
Houses  of  Lords  and  Commons  in  1860,  which  followed  the 
rejection  by  the  House  of  Lords  of  the  bill  for  the  repeal  of 
the  paper  duty,  and  which  led  in  the  ensuing  year  to  the  em- 
bodiment of  the  whole  budget  resolutions,  including  one  for 
the  repeal  of  the  paper  duty,  in  a  single  bill,  it  was  reasonably 
contended  that  the  action  of  the  House  of  Commons  was  not 
in  conformity  with  precedent,  and  was  indeed  a  high-handed 
proceeding,  resorted  to  for  the  avowed  purpose  of  depriving 
the  Lords  of  the  opportunity  of  exercising  a  deliberate  judg- 
ment upon  the  several  and  distinct  legislative  propositions 
included  in  this  bill  of  supply.  Nevertheless,  no  attempt  was 
made  to  involve  the  Crown  in  this  controversy,  or  to  induce 
the  sovereign  to  interpose  for  the  purpose  of  protecting  the 
privileges  or  securing  the  independence  of  the  House  of 
Lords.i'  ■ 

Failing  in  their  endeavour  to  persuade  the  governor  to  in- 
terfere on  their  behalf,  the  Legislative  Council  of  Victoria 


°  See  Victoria  Pari.  Papers,  1878,  no.  27,  p.  17. 
mons  Papers,  1878,  C.  1982. 

p  See  Todd,  Pari.  Govt.  vol.  i.  p.  459. 


Also,  Imperial  Com- 


il'i 


..4 
-^1 


!i 


m 


pi  I 


MMM 


492       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONirS. 


J 

ll 

HI 

■J 

ll 

N 

I 

^^ 

Wi 

■•»ji 

i  / 

1 1 

i 


Undue 
claims  of 
Legisla 


proceeded  to  assert  their  own  rights,  by  rejecting  the  appro- 
priation bill,  and  other  financial  measures  of  considerable 
importance.  This  compelled  the  government  to  make  large 
reductions  in  the  public  expenditure,  with  a  view  to  econo- 
mize the  funds  remaining  at  their  disposal.  The  governor, 
meanwhile,  adhered  to  his  attitude  of  impartial  non-interven- 
tion. 

But,  in  reporting  these  occurrences  to  the  secretsiry  of  state. 
Governor  Bowen,  in  a  despatch  dated  Dec.  26,  1877,  pointed 
out  that,  in  his  opinion,  as  well  as  in  that  of  his  able  predeces- 
sor in  office,  the  difficulty  underlying  these  politicd  struggles 
betwee.i  the  two  houses  was  that,  while  the  Assembly  were 
live  Coun-  Contending  for  no  more  than  the  powers  claimed  by  and  con- 
tork  ^'^  ceded  to  the  House  of  Commons,  the  Legislative  Council  re- 
fused to  be  limited  by  the  constitutional  practice  of  the  House 
of  Lords,  and  had  put  forth  a  pretension  to  be,  in  effect,  "  a 
second  House  of  Commons."  '* 

The  excuse  preferred  by  the  Legislative  Council  for  such 
an  extension  of  the  ordinaiy  and  appropriate  functions  of  an 
upper  chamber  was  that  being  an  elective  body,  whose  privi- 
leges, immunities,  and  powers  are,  equally  with  those  of  the 
Legislative  Assembly,  declared  by  statute  to  be  "  those  of 
the  Commons  House  of  Parliament  of  Great  Britain,"  they 
were  constitutionally  empowered  to  deal  with  all  questions  of 
legislation  upon  an  equal  footing  with  the  Assembly,  and 
that  the  only  qualification  of  their  legislative  powers  was 
that  imposed  by  tne  fifty-sixth  section  of  the  constitution  act, 
which  provides  that  "  all  bills  for  appropriating  any  part  of 
the  revenue  of  Victoria,  and  for  imposing  any  duty,  rate,  tax, 
rent,  return,  or  impost,  shall  originate  in  the  Assembly,  and 
may  be  rejected  but  not  altered  by  the  Council."  ' 

In  reply  to  Governor  Bowen's  despatch  above  cited,  reca- 
pitulating the  circumstances  attending  the  rejection  by  the 
Council  of  the  appropriation  bill  and  other  financial  measures, 
the  colonial  secretary  (Sir  M.  Hicks-Beach),  whilst  refrain- 
ing from  an  expression  of  opinion  on  the  merits  of  the  case 
until  he  should  be  more  fully  informed  upon  it,  conveyed  to 
the  governor  his  approval  of  his  Excellency's  efforts  to  main- 


•J  Commons  Papei-s,    1878,    C.         '  Victoria  Papers,  1878,  no.  27, 


1982,  p.  36.     Victoria  Pari.  Papers, 
1878,  110.  27,  p.  34. 


p.  29. 
56. 


18  and  19  Vict.  c.  55,  sec. 


jna*o=aii5» 


:oLONirs. 

g  the  <appro- 
considerable 
)  make  large 
ew  to  econo- 
he  governor, 
aou-interven- 

itary  of  state, 
L877,  pointed 
ble  predeces- 
ic.'d  struggles 
ssembly  were 
by  and  con- 
!  Council  re- 
of  the  House 
in  effect,  "  a 

icil  for  such 
ictions  of  an 
whose  privi- 
those  of  the 
e  "  those  of 
ritain,"  they 
questions  of 
sembly,  and 
powers  was 
titution  act, 
any  part  of 
y,  rate,  tax, 
sembly,  and 

cited,  reca- 
;tion  by  the 
al  measures, 
lilst  refrain- 
of  the  case 
onveyed  to 
rts  to  main- 

1878,  no.  27, 
let.  c.  55,  sec. 


i 


LOCAL  I'AUHAMENTS  AND  TOWERS  OF  A  GOVERNOR.     493 

tain  an  impartial  attitude,  and  to  avoid  interference  with  the 
responsibility  of  his  advisers." 

Meanwhile  the  Victoria  ministers  sought  to  obtain  authority  Issue  of 
to  sanction  the  issue  of  public  money,  notwithstanding  that  on'r'esolu- 
the  Legislative  Council  had  refused  to  concur  in  the  bills  of  tion  of  Aa- 
supply  sent  up  by  the  Assembly  for  their  assent.     They  ad-  ^'^'""v- 
dressed  to  the  governor  a  memorandum,  wherein  they  asserted 
the  right  of  the  "  governor  in  council "  to  sign  warrants  for 
the  issue  of  public  money,  voted  by  the  Assembly  for  the 
public  service,  upon  an  address  of  the  Legislative  Assembly, 
in  the  event  of  the  Legislative  Council  adhering  to  their  de- 
termination to  reject  tlie  bill  of  supply.     They  fortified  their 
opinion  by  that  of  the  law  officers  of  the  Crown  in  the  colony, 
and   inquired  whether  the  governor  was  prepared  to   give 
effect  to  the  same. 

Governor  Bowen,  on  Dec.  31, 1877,  transmitted  this  memo- 
randum to  the  colonial  secretary,  requesting  immediate  in- 
structions, as  to  the  course  he  should  pursue.  In  a  reply, 
sent  by  telegraph,  on  Feb.  22,  Sir  M.  Hicks-Beach  said, 
"  I  do  not  feel  justified  in  volunteering  any  opinion  on  the 
memorandum,  which  I  observe  does  not  invite  my  interven- 
tion. Your  duty  in  this  question  is  clear,  namely,  to  act  in 
accordance  with  advice  of  ministers,  provided  you  are  satis- 
fied the  action  advised  is  lawful.  If  not  so  satisfied,  take  your 
stand  on  the  law.  If  doubtful  as  to  the  law,  have  recourse 
to  the  legal  advice  at  your  command."  In  a  despatch  dated 
Feb.  28,  1878,  the  colonial  secretary  reiterated  these  remarks, 
and  expressed  a  hope  that  this  question,  being  of  local  con- 
cern, might  be  speedily  settled  by  mutual  concessions  ;  adding 
that,  unless  the  controversy  should  unhappily  prove  incapable 
of  settlement  between  the  parties  interested,  he  trusted  that 
neither  the  imperial  government  nor  the  governor  might  be  • 

drawn  in  to  any  share  in  it.' 

Pending  the  governor's  decision  as  to  the  signing  of  money 
warrants  upon  an  address  from  the  Assembly,  ministers 
recommended  certain  important  reductions  in  the  public  ser- 
vice, in  order  to  make  the  supplies  granted  for  the  current 
year  last  some  two  months  longer.    No  dismissals  of  public 


•  Victoria  Papers,  1878,  no.  27,  p.  35. 
«  Ibid.  pp.  36-39. 


IJi 


If 


lii 


;! 

■i. 


M    i\i  9 


494      PAULIAMENTAUY  GOVERNMENT  IN  THE  COLONIEK. 


:| 


V 


V 


i 
«  i 


ft::  If 

i' 


Disniissni    otticers  liad  taken  i)lacc  in  18G7,  when  u  similar  dead-lock  had 

otoHUials.   occurred,   thoii^di   salaries  were   necessarily  in   arrear,  for  a 

eonsiderahle  period.     This  time,  however,  ministers  advised 

that  a  larr^e  nnnd)er  of  officials,  of  various  c^vadcs,  from  county 

court  judges  to  minor  functionaries,  should  he  dismissed. 

After  re])eated  discussions  with  ministers  on  the  suhject, 
the  governor  reluctantly  consented  to  this  act,  heing  desirous 
"to  continue  to  co-operate  with  them  on  all  occasions  for  the 
puhlic  good,  and  to  follow  generally  their  advice  in  all  mat- 
ters of  local  concern,  not  repugnant  to  law."  IJut  he  declared 
his  determination  not  to  consent  to  any  of  the  "irregular 
financial  contrivances  which  were  adopted  during  a  former 
parliamentary  dead-lock  in  Victoria,  and  which  were  con- 
demned by  the  then  secretary  of  state  for  the  colonies."  "  Nei- 
ther would  he  sanction  any  measures  to  interfere  with  the 
currency,  or  the  banks,  or  which  might  affect  the  rights  and 
l)roperty  of  British  subjects  abroad  ;  for  to  do  so  would  be  a 
direct  violation  of  the  royal  instructions. 

At  this  juncture,  the  Assembly,  without  concert  or  commu- 
nication with  the  upper  house,  adjourned  for  six  weeks. 
Whereupon  the  Legislative  Council,  in  an  address  to  the  go- 
vernor, remonstrated  against  this  unprecedented  interruption 
to  public  business,  and  pointed  out  its  injurious  consequences. 
The  governor,  in  re[)ly  to  this  address,  declared  it  to  be  his 
"  duty  during  the  controversy  which  has  unfortunately  arisen 
between  the  two  deliberative  branches  of  the  legislature,  to 
abstain  from  all  interference,  otherwise  than  by  earnestly 
recommending  to  both  houses,  in  the  interests  of  the  public 
welfare,  mutual  forbearance  and  mutual  concession."  ^ 

On  Jan.  25,  1878,  Governor  IJowen  forwarded  to  the  colo- 
nial secretary  an  opinion  of  the  attorney-general  of  Victoria,  — 
concurring  in  an  opinion  given  by  Mr.  Fellows,  the  solicitor- 
general,  in  1858,  —  that  the  assent  of  the  Legislative  Council 
Issue  of      to  a  bill  of  supply  was  not  necessary  in  order  to  give  validity 
money        (;q  ^Yie  issv»e  of  public  money,  by  the  governor  in  council,  in- 
assent  of     asmuch  as  "  resolutions  of  the  committee  of  supply,  reported 
Legisla-       j^j^d  adopted  by  the  house,  make  the  amount  legally  availahh.''^ 
cil.  But  from  certain  correspondence  with  the  commissioners  of 


»  See  ante,  p.  104.  paper,  as  well  as  of  no.  1982,  are  in- 

"  Commons    Papers,    1878,    C.     eluded    in    the     Victoria    Papers, 
1985,    p.   4.    The  contents  of  this    1878,  no.  27. 


„.i— -»>. 


COLONIKS. 


LOCAL  PARLIAMENTS  AND  I'OWKUS  OF  A  GOVEIINOII.     495 


(lead-lock  liad 
unear,  for  a 
istcrs  advisfxl 
S  from  county 
lismlsscd. 

the  subject, 
cing  desirous 
asioMH  for  the 
'  ill  all  mat- 
t  he  declared 
10  "irref]rular 
»ig  a  former 
h  were  con- 
'lios."  "    Nci- 
ere  with  the 
e  rii,rhts  and 
would  be  a 

t  or  commu- 
six  weeks. 
ss  to  the  g'o- 
nterruption 
nsequences. 
t  to  be  his 
ately  arisen 
I'islature,  to 
eariiestlv 
the  public 

"  V 

• 

o  the  colo- 
/^icioria,  — 
e  solicitor- 

e  Council 
^'e  validity 
ouncil,  in- 

,  reported 
available.'' 
!sioners  of 

982,  are  in- 
ia    Papers, 


audit,  accompanying  this  opinion,  it  api)ears  that  while,  for 
a  time,  this  erroneous  i<lea  had  prevailed,  in  1.S(>'2  tiio  true 
constitutional  practice  had  been  introduced,  and  it  had  sin(;o 
been  customary,  as  in  England,  to  [)ass  acts  in  anticipation  of 
the  annual  appropriation  act,  to  legalize  the  issue  of  money 
voted  in  supply. 

Moreover,  Mr.  Fellows,  who  as  solicitor-general  had  ex- 
pressed the  opinion  above  stated,  afterwards  in  a  speech 
delivered  in  the  Legislative  Council  of  Victoria,  in  18(5"), 
admitted  that  he  had  made  a  mistake.  lie  had  since  learnt 
that,  in  England,  money  was  not  issued  "  upon  the  vote  of 
the  Mouse  of  Conmions,"  but  "  only  by  means  of  an  act  passed 
by  both  houses,  and  assented  to  by  her  Majesty,  and  provid- 
ing expressly  that  any  votes  of  the  House  of  Connnons  might 
be  paid  out  of  the  moneys  standing  to  the  credit  of  the  con- 
solidated fund."^  Meanwhile,  in  18G3,  the  colonial  audit 
commissioners  declined  to  sanction  any  further  issues  of  pub- 
lic mon(!y  until  they  were  satisfied  that  such  appropriations 
had  been  authorized  by  both  houses  of  parliament. 

In  the  dilemma  occasioned  by  these  contrary  ojjinions,  Go-  Governor 
vernor  Howen  requested  instructicms  from  the  Crown,  and  if  8^i,'|"ti,"" 
necessary,  an  opinion  from  the  imperial  crown  law  officers  for  such  a. 
his  guidance.     Until  otherwise  directed,  he  should  adhere  to  **  ^^*' 
the  conviction  "  that  the  governor  cannot  sign  warrants  for 
the  issue  of  money  from  the  public  treasury  without  the  cer- 
tificate of  the  audit  commissioners  that  the  monc}'  is  '  legally 
available.'  "     Later  on,  in  a  despatch  dated  March  18,  1878, 
the  governor  repeated  his  request  for  an  opinion,  on  this 
point,  from  the  law  officers  of  the  Crown  in  England,  in  view 
of  the  change  of  practice  in  Victoria,  since  1862,  and  the  fact 
that  the  Legislative  Council  had  recently  "  laid  aside  "  the 
appropriation  bill." 

Shortly  afterwards,  the  governor  informed  the  secretary  of 
state  that  his  ministers  had  protested  against  his  right  to  de- 
cline to  follow  their  advice  in  matters  of  purely  local  concern, 
and  also  against  his  having  sought  for  any  other  legal  advice 
than  that  of  the  colonial  law  officers.  In  Australia,  it  is  cus- 
tomar}'  for  the  law  officers  of  the  Crown  to  be  leading  mem- 


!i 


i  I 


^  See  Victoria  Leg.  Coun.  Jour- 
nals, 1877-78,  pp.  205,  206.  May, 
Pari.  Prac.  (ed.  1873)  p.  572. 


^  Commons    Papers,    1878,   C. 
1985,  pp.  5-12;  and  C  2173,  p.  42. 


i.i' 


40G       PARLIAMENTARY  GOVERNMENT  IN  TIIE  COLONIES. 

bers  of  the  cabinet ;  and  so  the  rejection  of  their  advice  is 
equivalent  to  a  rejection  of  the  advice  of  the  cabinet,  which 
is  a  constitutional  ground  for  the  resignation  of  ministers. 
This  makes  "  the  position  of  an  Australian  governor  one  of 
rare  difliculty  and  delicacy."  y  In  reply  to  this  despatch,  on 
July  5,  liS78,  Sir  M.  llicks-Iieach  —  while  recognizing  the 
general  obligation  of  a  governor  to  follow  the  advice  of  his 
ministers  in  local  matters,  if  only  he  refrains  from  sanction- 
ing an  illegal  act  —  pointed  out  that  a  governor  was  responsi- 
ble to  the  sovereign,  whom  he  represents  ;  and  that,  if  called 
upon  to  justify  the  legality  or  necessity  of  any  questionable 
proceeding,  he  could  not  shelter  himself  under  the  responsi- 
bility of  his  ministers.  In  all  doubtful  cases,  a  governor 
should  require  from  the  colonial  law  officers  a  written  memo- 
randum, certifying  —  as  the  authorized  exponents  of  the  law, 
and  not  in  their  capacity  of  political  advisers  —  that  no  in- 
fraction of  the  law  is  involved  in  advice  tendered  to  him.  If 
they  cannot  certify  this,  —  whenever  the  governor  is  urgentlj' 
pressed  to  sanction  a  doubtful  act,  or  if  he  is  unable  to 
accept  their  interpretation  of  the  law,  —  his  j)ersonal  re- 
sponsibility to  the  Crown  may  require  that  he  should  delay 
acting  on  the  advice  given,  until  he  can  decide  "  whether  the 
emergency  is  of  that  grave  and  urgent  character  which  alone 
could  justify  him  in  consenting  to  perform  the  act  advised,  or 
whether  he  should  inform  his  ministers  that  he  must  decline 
to  do  so,  even  at  the  cost  of  having  to  accept  their  resignation 
of  office."  * 

Anticipating  somewhat  the  course  of  our  narrative,  it  may 
be  here  stated  that  the  law  officers  of  the  Crown  in  England 
reported,  for  the  information  of  the  governor,  that  money 
voted  in  committee  of  supply  "is  not  available  until  it  has 
been  appropriated  by  an  act  of  the  Victoria  legislature." " 

On  Jan.  20,  1878,  Governor  Bowen  addressed  a  further 
despatch  to  the  colonial  secretary,  enclosing  a  copy  of  a 
memorandum  which  he  had  communicated  to  the  premier, 
representing  that  certain  acts  which  had  been  performed  by 
ministers,  and  measures  which  they  had  fidvised,  —  with  a 


J"  C\  anions  Papers,    1878,    C.  capacity  of  ministers,  and  of  legal 

2173,  p.  49.  advisers,  see  ante,  p.  134. 

«  Ibid,  p,  81.     In  regard  to  law  •  Commons     Papers,  1878,    C. 

oflicers  of  the  Crown  in  the  double  2173,  p.  97.     And  see  post,  p.  505. 


I" 


:OLONIES. 

eir  advice  is 
ibinet,  which 
of  ministers, 
ernor  one  of 
despatcl),  on 
ognizint;  the 
idvice  of  his 
om  sanction- 
was  responsi- 
hat,  if  called 
questionable 
the  res-'ponsi- 
,  a  governor 
ritten  memo- 
;s  of  the  law, 
-  that  no  in- 
d  to  him.  If 
3r  is  urgently 
is  unable  to 
personal  re- 
should  delay 
whether  the 
which  alone 
t  advised,  or 
nust  decline 
V  resignation 

itive,  it  may 
in  England 
Ithat  money 
until  it  has 
lature."  "^ 
a  further 
copy  of  a 
Ihe  premier, 
Irformed  by 
[l,  —  with  a 

and  of  legal 
34. 

Irs,  1878,    C. 
\post,  p.  505. 


I 


LOCAL  PARLLA.MENTS  AND  POWETIS  OF  A  GOVERNOR.     497 

view  to  reductions  in  the  public  service,  rendered  necessary  Governor 
owing  to  the  rejection  of  the  appropriation  bill  by  the  Legis-  "ii'j^aril^- 
lative  Council, — were  illegal.  In  this  paper,  —  wliile  ac-  missals, 
knowledging  that  he  was  bound  to  afford  to  his  ministers  for 
the  time  being  all  just  and  reasonable  support,  consistently 
with  obedience  to  tho  law,  —  the  governor  remarked  that,  if 
occasion  should  occur  wherein  it  was  "clear  to  his  judg- 
ment that  the  advice  of  his  ministers  involves  a  violation 
of  law,  in  such  a  case  it  would  doubtless  be  his  duty  to  refuse 
compliance,  and  to  endeavour  to  obtain  the  aid  of  other 
ministers."  This  principle  had  been  approved  by  her  Majes- 
ty's government,  who  at  the  same  time  had  disavowed  any 
"  wish  to  interfere  in  any  questions  of  purely  colonial  policy  ; 
and  only  desire  that  the  colony  should  be  governed  in  con- 
formity with  the  principles  of  responsible  and  constitutional 
government,  subject  always  to  the  paramount  authority  of  the 
law."  Accordingly,  the  governor  felt  it  to  be  his  duty  to 
request  ministers  to  cancel  forthwith  certain  notices  in  the 
*'  Official  Gazette,"  dispensing  with  the  services  of  certain 
judicial  officers  of  various  degrees;  "and  every  other  act  or 
notice  whatsoever  which  has  involved  or  may  involve  a  viola- 
tion of  the  law."  This  firm  and  decided  stand  taken  i)y 
the  governor  was  duly  responded  to  by  his  ministers,  who 
promptly  "  consented  to  retrace  their  steps  in  the  manner 
proposed,"  and  to  limit  themselves  to  making  such  reduc- 
tions in  the  public  service  as  to  which  they  believed  that  no 
exception  could  be  raised  on  the  score  of  illegality.'^ 

On  the  same  day  as  that  on  which  the  preceding  despatch 
was  written.  Governor  Bowen  transmitted  to  the  colonial 
secretary  an  address  to  her  Majesty  from  the  Legislative 
Council,  reciting  the  recent  events  in  this  controversy,  and 
accusing  his  Excellency  of  grave  dereliction  of  duty,  in  lending 
his  authority  and  influence  to  coerce  the  Legislative  Council 
in  the  performance  of  their  proper  functions,  and  in  plunging 
colonial  affairs  into  confusion.  He  forwarded,  with  this  ad- 
dress, a  memorandum  from  ministers,  defending  th^  governor 
from  these  aspersions,  and  also  observations  of  his  own,  wherein 
he  charged  the  Legislative  Council  with  being  responsible  for 
the  present  "dead-look"  and  its  results,  inasmuch  as  they 


■ill' 


^11 


I! 


«>  Commons  Papers,  1878,  C.  1985,  p.  32. 
32 


■  i 


■..n 


':Cfel 


Governor 
defends 
his  eon- 
duct. 


^1 


498       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

claimed  to  be  practically  supreme  in  the  colony,  and  had  re- 
fused to  settle  their  differences  with  the  Assembly  upon  the 
basis  of  imperial  parliamentary  precedent.  He  pointed  out, 
furthermore,  that  it  was  in  the  power  of  the  Council  to  re- 
move at  once  the  existing  confusion  and  uncertainty  in  the 
colony,  by  resuming  amicable  relations  with  the  Assembly,  and 
confining  themselves  to  the  powers  practically  exercised  by  the 
House  of  Lords  in  matters  of  finance."  The  governor  like- 
wise vindicated  himself  from  the  charges  made  against  him 
in  this  address,  urging  that  it  was  unconstitutional  to  hold 
him  personally  responsible  for  the  acts  of  his  ministers,  and 
thereby  to  ignore  his  own  especial  duty,  —  to  maintain  a 
strict  neutrality  in  the  differences  which  had  arisen  between 
the  two  houses.^ 

On  Feb.  18, 1878,  Governor  Bowen  transmitted  an  address 
to  the  queen  from  the  Legislative  Assembly,  on  the  politi- 
cal condition  of  the  colony.  This  address  recapitulated  the 
events  which  had  led  to  the  present  crisis,  and  charged  the 
Legislative  Council  with  having  thrown  the  affairs  of  the  co- 
lony into  distraction,  by  their  persistent  determination  to 
exercise  a  control  over  public  expenditure  which  had  long 
ago  been  relinquished  by  the  House  of  Lords.  The  address 
furthermore  proceeded  to  justify  the  proceedings  of  the  go- 
vernor and  his  ministei's  in  this  emergency.^  After  passing 
the  address,  the  Assembly  adjourned  until  March  5. 

Three  days  later,  the  governor  forwarded  to  the  queen  a 
second  address  from  the  Legislative  Council,  vindicating  their 
proceedings  from  the  interpretation  placed  upon  them  by  the 
aforesaid  address  from  the  Assembly,  and  correcting  certain 
erroneous  statements  therein.  The  Council  alleged  that  they 
had  been  compelled,  on  the  four  occasions  on  which  the  y  had 
rejected  appropriation  bills,  to  take  this  extreme  course  as 
the  only  means  of  asserting  and  maintaining  their  indepen- 
dence as  a  distinct  branch  of  the  legislature.  They  could 
only  presume  that  the  Assembly  desired  to  ignore  or  get  rid 


"  But  see  the  defence  offered  by 
the  Council  in  their  address  to  the 
Queen,  recorded  in  their  Journals 
of  Feb.  19,  1878. 

"•  Conunons  Papers,  1878,  C. 
1985,  pp.  33-45.     bee  also  the  go- 


vernor's re^  ly  to  an  address  of  the 
Leg.  Council,  in  their  Journals  of 
Feb.  19,  1878. 

e  Commons   Papers,   1878,    C. 
21/3,  p.  11. 


^i  1/  H'  i' 

id  !'■  r 


OLONIES. 

and  had  re- 
bly  upon  the 

pointed  out, 
ouncil  to  re- 
tainty  in  the 
Lssembly,  and 
ercised  by  the 
overnor  like- 
j  against  him 
;ional  to  hold 
ministers,  and 
to  maintain  a 
dsen  between 

ted  an  address 
on  the  politi- 
apitulated  the 
id  charged  the 
airs  of  the  co- 
:ermination  to 
hich  had  long 
The  address 
igs  of  the  go- 
After  passing 
ch  5. 

|o  the  queen  a 
iidicating  their 
(U  them  by  the 
Irecting  certain 
jeged  that  they 
hich  they  had 
ime  course  as 
jtheir  indepen- 
They  could 
ore  or  get  rid 


in  address  of  the 
their  Journals  of 

(apers,   1878,    C 


LOCAL  PARLIAMENTS  AND  POWERS  OF  A  GOVERNOR.     499 

of  the  second  chamber,  and  of  the  restraints  which  it  imposed 
upon  the  Assembly,  in  their  endeavour  to  exercise  unlimited 
control  over  all  measures  involving  the  expenditure  of  public 
money.  The  Council  were  now,  as  heretofore,  ready  to  sub- 
mit the  differences  as  to  the  construction  of  the  constitution 
act  to  the  judicial  committee  of  the  privy  council ;  but  the 
Assembly  would  not  consent  to  do  so.  They  therefore,  as- 
sured of  their  own  loyalty  to  the  queen  and  constitution,  pro- 
tested against  the  conduct  of  the  Assembly,  in  seeking  to 
authorize  expenditure  upon  the  authority  of  their  own  reso- 
lutions, without  the  sanction  of  the  Council.^ 

Very  little  business  was  done  by  the  Assembly  after  their 
reassembling,  until  March  28,  when  the  house  being  informed 
that  the  Legislative  Council  had  agreed  to  a  compromise,  Tompora- 
whereby  the  expiring  law  for  the  payment  of  members  would  r>  aKno- 
be  continued  in  a  separate  bill,  the  appropriation  bill,  which  twcen  the 

had   been  laid  aside  by  the  Council,  was  again  introduced,  J"'" 

11  -1         1        1      /-■  .1  houses, 

passed,  and  agreed  to  by  the  Council. 

This  grave  and  serious  controversy  being  ended,  for  a  time, 
the  Assembly  just  before  the  close  of  the  session,  on  April  9, 
1878,  agreed  to  an  address  to  Governor  Bo  wen,  expressing 
their  appreciation  of  his  impartial  and  constitutional  attitude 
during  this  protracted  conflict.  They  testified  that  his  Ex- 
cellency had  manifested,  in  his  relations  to  parliament,  to  his 
ministers,  and  to  the  Crown,  "  a  constant  desire  to  preserve 
to  each  its  legitimute  authority  ;  and,  in  after  times,  we  doubt 
not  the  example  which  you  have  set,  in  a  grave  public  emer- 
gency, will  be  cited  as  a  model  for  constitutional  go>^er- 
nors."8 

The  governor  in  his  speech,  at  the  prorogation  of  parlia- 
ment, stated  that,  during  this  protracted  and  memorable  ses- 
sion (which  lasted  from  June  2G,  1877,  to  April  9,  1878),h 
"grave  questions  of  constitutional  rights  and  powers  have 
arisen,  and  been  debated  and  maintained  [on  the  part  of  the 


'  Commona  Papers,  1878,  C. 
2173,  p.  15. 

8  \  ictoria  Assembly  Votes, 
1877-78,  vol.  i.  pp.  289-314. 

•*  It  should  be  stated  that  the 
session  actually  began  on  May  22, 
which  was  the  first  day  of  a  new 
parliament,    but    on    that  day    no 


husiness  was  done,  except  the  elec- 
tion of  a  speaker,  and  his  presenta- 
tion to  the  governor.  liotn  houses 
then  adjourned  until  June  26,  on 
account  of  a  change  of  ministry  on 
May  21,  and  to  enable  the  new  mi- 
nisters to  go  for  re-election. 


I   .: 


I    'V 


ij 


II 


Conduct 
of  (lovcr- 
nor  Bowen 
consi- 
dered. 


500       PARLIAMENTARY  GOVERNMENT  IN  TIIE  COLONIES. 

Legislative  Assembly]  with  inflexil)le  resolution  ;  but  I  rejoice 
to  add  that  a  settlement  has  been  ultimately  found,  not  incon- 
sistent with  the  principles  of  responsil)le  government  and  the 
spirit  of  the  constitution.  To  avoid,  however,  the  possibility 
of  the  recurrence  of  such  a  conflict  in  the  future,  my  advisers 
will,  with  all  possible  despatch,  prepare  a  measure  to  alter 
and  amend  the  constitution  statute."' 

On  April  11,  the  governor  forwarded  to  the  secretary  of 
state  a  further  address  to  himself,  passed  on  the  2d  instant,  by 
the  Legislative  Council,  togetlier  with  his  reply,  and  a  minis- 
terial memorandum  on  the  subject.  In  this  despatch,  and  in 
another  dated  April  12,  Sir  G.  IJowen  narrated  the  efforts  he 
had  made  to  restore  harmony  between  the  two  houses,  and 
enumerated  the  reasons  which  had  actuated  liim  in  his  endea- 
vours, as  a  constitutional  governor,  to  observe  a  neutral  and 
impartial  position,  during  the  continuance  of  this  dispute. 
He  also  defended  himself  against  the  complaints  urged  by  the 
Legishitive  Council,  "  tliat  he  evinces  partiality  whenever  he 
declines  to  obey  tlieir  behests  to  overrule  his  responsible  mi- 
nisters." The  governor  claimed  that  his  policy  had  succeeded 
in  bringing  the  parliamentary  crisis  to  a  close,  without  a  social 
and  political  convulsion.  And  that  the  outcry  raised  against 
him  was  akin  to  similar  attacks  upon  other  colonial  gover- 
nors, who  had  been  "assailed  by  beaten  minorities,  because 
they  steadily  supported  ministries  possessing  the  confidence 
of  the  majority  of  the  colonial "  assemblies.  J 

The  news  of  the  happy  termination  of  this  long-continued 
struggle  reached  the  colonial  office  by  telegram,  just  as  the 
colonial  secretary  was  about  to  write  to  Governor  Bowen,  to 
intimate  his  satisfaction  at  receiving  explanations  from  his 
Excellency  in  regard  to  his  conduct  in  this  trying  emer- 
gency.*^ 

In  reviewing  the  part  taken  by  Governor  Bowen  during 
this  political  crisis,  it  is  hard  to  conjecture  what  else  he 
could  have  done  to  uphold  the  equilibrium  of  the  state,  or 
to  restrain  the  excesses  of  either  party  in  the  contest.  The 
diflBculty  began  in  a  conflict  between  the  legislative  chambers 


'  Assembly  Votes,  1877-78,  vol.  *  Commons    Papers,  1878,  C. 

i.  p.  318.  1.085,  p.  4.     And  see  Hans.  Deb. 

i  Commons    Papers,    1878,    C.  vol.  ccxxxviii.  p.  1101. 
2173,  pp.  51-57,  U;J. 


OLOXIES. 

but  T  rejoice 
1(1,  not  incon- 
meut  and  the 
he  possibility 
,  my  advisers 
Lsure  to  alter 

3  secretary  of 
2d  instant,  by 
,  and  a  minis- 
;patch,  and  in 
the  efforts  he 
'O  houses,  and 
1  in  his  endea- 
i  a  neutral  and 
■   this  dispute. 
s  urged  by  the 
y  whenever  he 
responsible  mi- 
had  succeeded 
[vithout  a  social 
raised  against 
colonial  gover- 
jrities,  because 
the  confidence 

long-continued 
im,  just  as  the 
rnor  Bowen,  to 
tions  from  his 
s  trying  emer- 

Bowen  during 

what   else   he 

of  the  state,  or 

3  contest.    The 

ative  chambers 

Papers,  1878,  C 
J  see  Ilaua.  Deb. 
1401. 


LOCAL  PARLIAMENTS  AND  POWERS  OF  A  GOVERNOR.     501 

concerning  their  respective  constitutional  rights.    In  this  con-  Position  of 
test,  there  was  obviously  nothing  to  warrant  the  authoritative  !!M*7T 
interposition  of  the  governor  ;  and  it  was  his  duty  to  avoid  liaimn- 
any  interference  with  either  house  whilst  they  were  striving,  pu{^,g|'^" 
within  the  lawful  limits  of  parliamentary  warfare,  for  the 
maintenance  of  their  several  rights  and  privileges.     The  only 
course  open  to  a  governor,  under  such  circumstances,  is  one  of 
friendly  mediation  between  the  contending  parties.     In  con- 
formity with  British  constitutional  practice,  which  regulates 
the  action  of  the  sovereign  towards  the  two  liouses  of  parlia- 
ment, it  is  always  becoming  in  a  governor  to  endeavour  to 
restore  harmony  in  the  body-politic.^      In  this  respect  it  is 
evident,  from  the  correspondence  laid  before  parliament,  that 
Governor  Bowen  was  not  wanting,  and  that  he  left  no  efforts 
untried,  in  this  direction,  which  were  compatible  with  his  im- 
partial and  responsible  position.     As  a  last  resort,  in  such  an     \ 
emergency,  a  governor  is  constitutionally  competent  to  have     \ 
recourse  to  the  prerogative  of  dissolution,  and  to  appeal  to      1 
the  constituent  bodies,  on  the  express  ground  of  the  existence       i 
of  disputes  between  the  legislative  chambers  which  render  it       1 
impossible  for  them  to  work  together  harmoniously,     lie  may       \ 
thus  endeavour  to  arrive  at  some  common  basis  of  reconcilia-        ! 
tion  and  agreement,  which  would  be  ratified  by  public  opi-        i 
nion.-"     And  if  the  ministry  in  power  were  not  willing  to        j 
become  responsible  for  a  dissolution,  the  governor  wov.ld  be 
competent  and  amply  warranted,  upon  a  reasonable  conviction 
of  the  probable  success  of  such  an  undertaking,  in  invoking 
the  aid  of  other  ministers,  by  whose  assistance  it  might  be 
practicable  to  restore  a  good  understiinding  between  the  Coun- 
cil and  Assembly,  either  with  or  without  the  necessity  for  an 
appeal  to  the  people." 

It  would  seem,  however,  that  the  alternative  of  a  dissolution 
of  parliament  was  not  available  in  Victoria  at  this  juncture. 
Adverting  to  an  observation  in  an  address  of  the  Legislative 
Council,  at  this  period,  that,  if  ministers  would  neither  defer 
to  the  claims  of  the  Council  or  retire  from  office,  they  ought 
at  least  to  appeal  to  the  people,  Governor  Bowen  alleged 

'  See  Todd,  Pari.  Govt.  vol.  ii.  iniuiia  Leg.  Coun.  Journals,  1877, 

p.  203.  sess.  2,  uppx.  no.  A').  And  j)o.<t,  rj.")2. 

"'  See  Govprnor    Wt^ld's    memo-  "  See  Todd,  Pari.  Govl.  vul.  ii. 

randum  ou   this    subject,    iu  Tas-  p.  405. 


■I  t) 


r'l 


'■ii 


I 


^ar;T.?t?M:r;,r^;?»^:.::77^J555«a(5a?'P«i«^"^^  .^j- 


.»,  .  I .»  *my  jm 


502       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


«  ! 


I  : 


"  that  the  present  ministry  is  supported  by  a  majority  of 
about  two-thirds  of  the  Legislative  Assembly,  and  that  there 
is  no  reason  to  suppose  that  this  proportion  would  be  mate-- 
rially  altered  by  the  dissolution  of  an  Assembly  which  is 
almost  fresh  from  the  country,  having  been  elected  only  eight 
months  ago."  °  Moreover,  ministers,  at  this  particular  time, 
were  restrained  from  advising  a  dissolution  (a  course  which,  if 
likely  to  succeed  in  bringing  about  a  final  settlement  of  the 
question  at  issue,  they  would  unhesitatingly  have  app^'oved) 
by  the  reflection  that  when,  during  a  former  contest  between 
the  two  houses,  a  ministry  supported  by  a  large  majority  in 
the  Assembly  obtained  leave  to  appeal  to  the  people  by  a 
dissolution  of  parliament,  the  Council  afterwards  refused  to 
abide  by  the  result  of  the  appeal. i* 

Unable  in  this  exigency  to  make  use  of  the  prerogative  of 
dissolution,  as  a  means  of  restoring  unity  in  the  body-politic, 
Go^'^'^rnor  Bowen  was  confirmed  in  his  conviction  that  he 
must  adhere  to  the  policy  of  absolute  neutrality,  lest  the 
Crown  in  his  persons  hould  be  brought  into  direct  antagonism 
w:>h  the  Assembly  and  with  the  peop^   ,i 

For  the  course  ordinarily  open  to  a  governor,  when  he  dis- 
approves of  the  policy  of  his  ministers,  of  transferring  his 
confidence  to  other  hands,  was  not  available  under  existing 
circumstances.  The  end  in  view  being  not  so  much  the 
adoption  of  a  different  policy  in  the  administration  of  public 
affairs,  as  the  restoration  of  harmony  between  the  two  houses, 
Governor  Bowen  recalled  the  sagacious  words  of  his  experi- 
LordCan-  enced  predecessor.  Lord  Canterbury,  uttered  in  reference  to 
terbury  on  ^|  parliamentary  "  dead-lock  "  of  1867-68, "  it  is  the  firstduty 
nor'sposi-  of  a  governor  to  abstani  from  taknig  any  step  which  would 
identify  him  with  either  or  any  of  the  contending  political 
parties  in  the  colony,"  and  "  the  displacement  of  ministers, 
supported  continuously  by  a  majority  of  the  lower  house,  is  a 
step  which  could  not  properly  be  taken  by  the  governor  with- 
out a  fair  prospect,  at  least,  of  that  success  by  which  alone,  as 
is  admitted  by  all  constitutional  authorities,  such  an  excep- 
tional exercise  of  the  prerogative  can  be  justified.     It  has 


tion 


"  Commons  Papers,  1878,  C.  1P85,  p.  43. 

P  Vict.  Assembly  Journals,  1877-78,  vol.  i.  p.  291. 

1  Commons  Papers,  1878,  C.  1985,  p.  43. 


OLONIES. 


LOCAL  PAKLLAMENTS  AND  POWERS  OF  A  GOVEUNOR.     503 


majority  of 
id  that  there 
lid  be  mate-- 
)ly  which   is 
3d  only  eight 
•ticular  time, 
urse  which,  if 
ement  of  the 
^e  approved) 
itest  between 
e  majority  in 

people  by  a 
ds  refused  to 

prerogative  of 
}  body-politic, 
ction  that  he 
ility,  lest  the 
set  antagonism 

,  when  he  dis- 
ransferring  his 
inder  existing 
so  much    the 
ition  of  public 
he  two  houses, 
of  his  experi- 
n  reference  to 
is  the  first  duty 
p  which  would 
nding  political 
t  of  ministers, 
wer  house,  is  a 
crovernor  with- 
which  alone,  as 
tuch  an  excep- 
itified.     It  has 


p.  291. 


therefore  been  the  duty  of  the  governor,  throughout  the  par- 
liamentary contests  which  have  for  some  moutlis  impeded, 
and  have  now  stopped  financial  legislation,  to  confine  his 
endeavours  to  restore  united  action  in  the  legislature  within 
the  limits  prescribed  by  neutrality  on  the  points  at  issue 
between  the  two  houses,  and  by  the  constitutional  right  of 
an  existing  government  to  the  fair  support  of  the  governor." 
These  observations  of  Lord  Canterbury,  which  were  entirely 
approved  by  the  imperial  authorities,  were  regarded  by  Sir 
G.  Bowen  as  equally  applicable  to  himself  on  the  present 
occasion,  and  as  being  in  exact  agreement  with  his  own  rule 
of  conduct  in  past  times.' 

Before  proceeding  to  record  subsequent  events,  which 
speedily  fanned  the  embers  of  these  vexatious  contests  into  a 
fierce  flame,  mention  should  be  made  of  one  or  two  other 
points  of  interest,  which  claim  our  notice  at  this  stage  of  our 
narrative. 

In  Victoria,  under  the  crown  remedies  and  liabilities  act,  Dismissed 
1865  (28  Vict.  no.  241),  a  person  who  may  feel  himself  aj?-  «ffl^''^'' 
grieved  by  any  action  oi  the  government,  may  seek  redress  Supreme 
from  the  Supreme  Court,  the  decisions  of  which  tribunal  would  Court. 
of  course  be  carried  into  execution  by  the  civil  authorities. 

Accordingly,  on  Feb.  9,  1878,  application  was  made  to  the 
Supreme  Court  to  test  the  legality  of  the  proceedings  of  the 
Victoria  government,  to  which  we  have  already  referred,*'  in 
removing  from  office  certain  county  judges,  holding  office 
"  during  pleasure,"  and  whose  salaries  had  ceased  with  the 
"  stoppage  of  supplies."  But  the  court  refused  to  interfere, 
declaring  that  this  point  could  only  be  properly  disposed  of 
by  a  writ  of  error.*  Ere  long,  as  we  shall  presently  see,  the 
home  government  interposed,  and  called  the  attention  of  the 
governor  to  the  highly  objectionable  character  of  the  proceed- 
ing in  question. 

Meanwhile,  on  April  10,  1878,  a  deputation  of  magistrates, 
merchants,  and  others,  connected  with  the  Australian  colonies, 
waited  upon  Sir  M.  Hickt,  -Beach  (the  colonial  secretary),  to 
express  their  satisfaction  at  the  temporary  adjustment  of  the 


{ ii 


'  Commons  Papers,  1878,  C.  2173,  p.  6. 

■  See  ante,  p.  494. 

»  Commons  Papers,  1878,  C.  2173,  pp.  2-6. 


604       PARLIAMENTARY  GOVERNMENT   IN  THE  COLONIES. 


i 


the  go 
vernor. 


Colonial  clispnte  between  the  two  houses  in  Victoria,  to  point  out  the 
appealed  GiTois  into  which  they  believed  Sir  G.  Bowen  to  have  fallen 
to  against  during  the  continuance  of  the  crisis  in  that  colony,  and  to 
justify  the  action  taken  by  the  Legislative  Council.  In  reply, 
the  secretary  of  state  expressed  to  these  gentlemen  liis  will- 
ingness to  give  a  careful  consideration  to  their  statements, 
but  declined  to  discuss  with  them  the  merits  of  the  contro- 
versy in  Victoria.  He  added  that,  "  if  the  action  or  advice 
or  assistance  of  the  home  government  should  be  desired  by 
the  colony,  it  will  be  most  readily  given."  Until  then,  "•  it 
would  be  impossible  for  the  home  government  to  interfere." 
While,  "  as  a  general  rule,  the  governor  of  a  colony  ought  to 
act  upon  the  advice  of  his  responsible  ministry,"  he  "  is  placed 
in  a  position  of  great  responsibility,  difficulty,  and  isolation." 
"  No  one  could  wish  to  see  him  reduced  to  the  position  of  a 
machine,  or  that  his  action  should  be  merely  that  of  a  clerk, 
unable  to  decide  on  any  particular  matter  until  he  received 
his  instructions  from  Downing  Street.  We  endeavour  to 
make  our  colonial  governorships  positions  of  high  dignity,  and 
considerable  emoluments,  in  order  to  obtain  the  services  in  those 
positions  of  capable  men,  —  men  who  are  able  and  ready  to 
act  for  themselves  with  clear-sightedness,  firmness,  and 
wisdom,  in  any  emergency."  Such  men  are  entitled  to 
great  confidence,  and  their  acts  should  not  be  hastily  criticised 
and  until  we  are  fully  acquainted  with  all  the  facts.  If,  here- 
after, "  it  should  appear  tliat  in  any  point  Sir  George  Bowen 
has  been  properly  to  blame,  I  shall  not  hesitate  to  express 
my  opinion  upon  it."  " 

In  acknowledging  the  receipt  of  the  addresses  to  the  queen 
from  both  houses  of  the  Victoria  parliament,  Sir  M.  Hicks- 
Beach,  in  his  despatches  of  April  24  and  80,  expressed  him- 
self to  the  same  effect,  with  a  general  though  guarded  ap- 
proval of  the  conduct  of  Governor  Bowen.'' 

On  March  17,  1878,  Governor  Bowen  reported  to  the  sec- 
retary of  state  a  decision  of  the  Legislative  Assembly  upon  a 
curious  point,  elsewhere  noticed;"'  namely,  that,  under  the 
forty-fifth  section  of  the  Victoria  constitution  act,  authority 
was  given  for  the  appropriation  of  so  much  of  the  consolidated 
revenue  of  the  colony  as  might  be  necessary  to  defray  the 


"  lhi(L  pp.  22-30,  and  see  p.  85.  "  See  ante,  p.  175. 

"  Ibid.  pp.  30,  31. 


II 


OLONIES. 

loint  out  the 
)  have  fallen 
louy,  and  to 
il.  In  reply, 
nen  his  will- 
•  statements, 
■  the  contro- 
an  or  advice 
le  desired  by 
itil  then,  '^  it 

0  interfere." 
ony  ought  to 
he  "  is  placed 
lid  isolation." 
position  of  a 
[it  of  a  clerk, 
L  he  received 
endeavour  to 

1  dignity,  and 
rvices  in  those 
and  ready  to 
irmness,  and 
!  entitled  to 
jtily  criticised 
cts.  If,  here- 
eorge  Bowen 

e  to  express 

to  the  queen 

nr  M.  Hicks- 

:pressed  him- 

guarded  ap- 

.  to  the  sec- 

mbly  upon  a 

at,  under  the 

act,  authority 

3  consolidated 

o  defray  the 

3. 


LOCAL  PARLIAMENTS  AND  POWEUS  OF  A  GOVERNOR.     505 

charges  incident  to  the  collection,  management,  and  receipt  Appro- 
thereof,  without  the  need  of  a  parliamentary  vote  on  this  |!,'ji;'{,'iii" 
behalf.     The  law  officers  of  the  Crown,  the  audit  commission-  fmuLs  un- 
ers,  and   certain  eminent  lawyeu  in  Victoria,  disconnected  ri'.il  "ta-*^" 
with  party  politics,  had  all  concurred  in  this  interpretation  tute. 
of  the  imperial  statute.     Ministers  had,  accordingly,  advised 
the  governor  to  sign  a  treasury  warrant  authorizing  the  re- 
sort to  this  mode  of  providing  funds  to  maintain  "  establish- 
ments absolutely  necessary  for  the  protection  of  life  and  pro- 
perty in  this  colony,"  during  the  "  stoppage  of  the  supplies." 
Assuming  this  to  be  "  an  affair  of  purely  colonial  concern, 
and  not  repugnant  to  the  law  and  to  the  constitution,"  the 
governor  agreed  to  take  this  course,  should  it  prove  to  be 
impossible  to  arrive  at  an  amicable  arrangement  of  the  differ- 
ences between  the  two  houses,  by  the  passing  of  the  annual 
appropriation  bill."      The  Legislative  Council,  however,  pro- 
tested against  this  novel  proceeding,  and  contended  that  it 
was  based  upon  a  misconstruction  of  the  imperial  act.y     Luck- 
ily, the  amicable  settlement  of  the  parliamentary  "  dead-lock  " 
rendered  it  unnecessary  to  adopt  this  extraordinary  method 
of  obtaining  the  '*  legal  issue  "  of  public  money. ^ 

But  before  an  amicable  understanding  had  been  come  to, 
the  governor  had  applied  to  England  for  advice  upon  this 
question,  as  well  as  upon  the  question  whether  resolutions 
adopted  by  the  Assembly,  in  committee  of  supply,  sufficed  to 
render  "  legally  available  "  for  public  expenditure  money  in 
the  public  chest.  Both  these  queries  were  answered  by 
the  secretary  of  state,  in  a  despatch  dated  Aug.  17,  1878. 
As  regards  the  interpretation  to  be  put  upon  the  Imperial  Act 
18  and  19  Vict.  c.  55,  sec.  45,  the  law  officers  of  the  Crown 
were  of  opinion  that  the  moneys  necessary  to  defray  the  costs, 
charges,  and  other  expenditure  mentioned  in  that  section  were 
legally  available,  without  further  parliamentary  warrant, 
being,  in  fact,  specifically  appropriated  by  the  imperial  statute. 
But  that  money  merely  voted  in  committee  of  supply  was 
not  available,  until  it  had  been  specifically  appropriated  to 
the  intended  purpose  by  an  act  of  the  Victorian  legislature.** 

Replying  to  this  despatch,  on  Oct.  16,  1878,  the  Governor 

*  Commons  Papers,  1878,  C.  «  Commons  Papers,  1878,  C. 
2173,  pp.  32-42.  2173.  n.  QC^. 

y  Ibid.  p.  60. 


• 


■  Commons   ] 
2173,  p.  96. 
»  Ibid.  p.  97. 


Dismissed 
officials  re- 
placed. 


606       PARLIAMENTARY  GOVEROTHENT  IN  TIIE  COLONIES. 

expressed  his  satisfaction  at  learning  that  he  had  been  right 
in  his  intended  sanction  of  the  ministerial  advice  that  he 
should  sign  warrants  for  the  issue  of  public  money  under  the 
forty-fifth  section  of  the  Constitution  Act  as  aforesaid ;  and 
abo  in  refusing  to  sign  warrants  at  the  request  of  minicters 
for  any  other  treasury  advances  except  by  authority  of  a 
colonial  statute.^ 

After  the  crisis  of  1878  had  terminated,  and  the  appropria- 
tion bill  had  become  law,  steps  were  immediately  taken  to 
reinstate  certain  public  officers  in  the  judicial  and  c'vil  depart- 
ments who  had  been  dismissed  on  account  of  the  "  stoppage  of 
the  supplies.''  Nearly  all  the  judicial  and  legal  officials  were 
replaced ;  but  ministers  decided  to  take  this  opportunity  to 
reduce  an  overgrown  and  costly  civil  service,  and  to  reinstate 
"  only  such  officers  as  are  required  for  the  proper  working  of 
the  civil  service,  while  the  remainder  shall  receive  the  liberal 
pensions,  superannuations,  and  other  compensations  for  loss  of 
office,  provided  by  law." 

The  governor,  both  now  and  at  a  later  period,  remonstrated 
with  his  ministers  on  this  matter.  He  urged  them  to  consent 
to  a  general  reinstatement  of  all  civil-service  employes  whose 
services  had  been  dispensed  with  pursuant  to  the  ministerial 
memorandtira  of  Jan.  8, 1878  ;  but,  this  being  a  local  and  not 
an  imperial  question,  the  governor  did  not  claim  to  interfere 
with  authority.  He  simply  expressed  an  earnest  hope  that 
ministeis  would  deal  equitably,  wisely,  cad  liberally,  in  the 
case.  Ministers,  however,  in  a  commtinication  dated  May  6, 
stated  that  they  did  not  consider  a  general  reinstatement  of 
all  officers  who  had  been  discharged  to  be  advisable.  The 
course  they  had  taken  had  been  approved  by  the  Assembly. 
They  insisted,  moreover,  "  that  the  mode  of  dealing  with  the 
civil  service  of  Victoria,  is  purely  a  matter  of  Victorian  con- 
cern," and  that,  irrespective  of  any  interference  or  suggestion 
on  the  part  of  the  governor,  they  had  "  the  exclusive  right 
of  dealing  with  it  on  their  own  responsibility."  Being  him- 
self persuaded,  however  erroneously,  that  ministers  had  ample 
authority  for  this  position,  his  Excellency  undertook  to  de- 
fend it  in  a  despatch  to  the  secretary  of  state,  dated  May  8, 
1878."  

»>  Commons  Papers,  1878-79,  C.  2217,  p.  35. 
«  Ibid.  1878,  C.  2173,  p.  70. 


OLONIES. 


LOCAL  PARLIAMENTS  AND  POWERS  OF  A  GOVERNOR.     507 


id  been  right 
vice  that  he 
ey  under  the 
'oiesaid ;  and 
of  minioters 
athority  of  a 

he  appropria- 
tely taken  to 
I  c'vil  depart- 
"  stoppage  of 
officials  were 
pportunity  to 
d  to  reinstate 
er  working  of 
ive  the  liberal 
ons  for  loss  of 

,  remonstrated 
lem  to  consent 
iployds  whose 
;he  ministerial 
,  local  and  not 
n  to  interfere 
est  hope  that 
erally,  in  the 
dated  May  6, 
nstatement  of 
visable.     The 
the  Assembly, 
aling  with  the 
V^ictorian  Con- 
or suggestion 
xclusive  right 
Being  him- 
ters  had  ample 
dertook  to  de- 
dated  May  8, 


Subsequently,  a  Mr.  Gaunt,  a  police  magistrate  whose  ser- 
vices had  been  dispensed  with  at  this  juncture,  petitioned  the 
queen  for  redress.  This  petition,  as  required  by  the  Colo- 
nial Regulations  (c.  7,  sec.  6),  was  duly  forwarded  through 
the  governor.  In  reply,  his  Excellency  was  re(;[uested  to 
notify  Mr.  Gaunt  that  the  secretary  of  state  had  been  unable 
to  advise  her  Majesty  to  take  any  action  in  the  matter,  it 
being  one  which,  under  the  colonial  constitution,  was  within 
the  jurisdiction  of  the  governor  and  his  executive  council.  The 
governor  afterwards  reported  that  Mr.  Gaunt,  upon  formal 
application,  had  received  the  compensation  for  loss  of  office 
to  which  he  was  legally  entitled.^ 

In  answer  to  the  aforementioned  despatch  from  Governor 
Bowen,  of  May  8,  1878,  Secretary  Sir  M.  Hicks-Beach,  in  a 
despatch  dated  Aug.  25,  while  disclaiming  any  desire  to  en- 
croach upon  the  responsibility  of  the  local  ministers  in  matters 
within  their  peculiar  jurisdiction,  animadverted  upon  the  per- 
sonal responsibility  which  attached  to  the  governor  in  approving 
the  advice  given  as  to  the  partial  reinstatement  of  civil  ser- 
vants who  had  been  removed  from  office  in  January  last. 

The  question  was  undoubtedly  within  the  discretion  of  the 
local  government ;  that  is  to  say,  of  the  governor  acting  by 
and  with  ^he  advice  of  his  ministers.  In  all  questions  of  a 
local  nature  the  governor  would,  as  a  general  rule,  be  guided 
by  the  advice  of  his  ministers  ;  but  he  has  a  right  to  discuss 
with  them  any  topic  that  may  arise,  and  to  express  freely  his 
opinions  and  suggestions  thereon.  Under  ordinary  circum- 
stances, if  satisfied  as  to  his  duty  to  the  law  or  the  consti- 
tution, the  governor  would  follow,  as  of  course,  the  advice 
received,  and  his  action  would  not  come  under  the  review  of 
her  Majesty's  government. 

"  But  it  is  very  obvious  that  the  recent  removal  from  office 
of  a  large  number  of  the  civil  servants  of  Victoria  was  no 
ordinary  occasion,  and  involved  constitutional  principles  of 
great  importance  not  only  to  Victoria,  but  (as  being  a  prece- 


Lopnlity 
of  offieiiil 
(listuissaU 


questioned 
by  imperi- 
al govern- 
ment. 


5. 


•*  Commons  Papers,  1878,  C. 
2173,  pp.  78,  84,  102.  See  also  the 
case  of  Mr.  G.  Gordon,  late  chief 
engineer  of  water  supply,  who,  hav- 
ing petitioned  her  Majesty  against 
his  alleged  wrongful  dismissal  by 


the  minister  of  mines  in  Victoria, 
was,  in  like  manner,  referred 
back  to  the  governor  in  council. 
Commons  Papers,  1878-79,  C.  2339, 
pp.  1, 13. 


m 


:  I 


mum 


M 


508     PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

dent)  to  all  colonies  living  under  constitutions  granted  b}' 
the  Crown  or  by  the  Purliument  of  Great  liritain."  It  is  an 
element  of  these  constitutions  to  uphold  and  secure  a  perma- 
nent civil  service,  only  subject  to  removal  by  the  executive 
government  lor  specific  misconduct,  or  to  carry  out  a  scheme 
of  reductions  which  had  been  duly  considered  and  approved 
by  the  legislature. 

It  is  clear,  liowever,  that  the  case  of  a  large  number  of 
civil  servants  lately  discharged  in  Victoria  had  not  been  dealt 
with  on  these  principles  ;  but  avowedly  "  with  a  view  to 
economize  the  funds  at  the  disposal  of  the  government,"  and 
to  enable  them  to  surmount  a  serious  financial  difficulty, 
which  has  since  been  wholly  removed  by  the  passing  of  the 
appropriation  act. 

It  therefore  became  the  duty  of  the  governor,  before  con- 
senting to  this  transaction,  to  satisfy  himself  that  the  proposed 
proceeding  was  justifiable  in  the  interests  of  the  public  at 
large.  No  claim  to  "exclusive"  responsibility,  on  the  part 
of  ministers,  could  relieve  the  governor  of  this  obligation. 
He  would  have  done  better,  in  the  opinion  of  the  secretary 
of  state,  as  well  for  the  colony  as  in  the  maintenance  of  the 
principles  of  parliamentary  government,  had  he  notified  his 
ministers  that  he  felt  unable  to  put  his  name  to  the  docu- 
ments directing  the  removal  of  these  officers. 

This  course  might  have  involved  the  resignation  of  the 
ministry.  But  it  might  also  have  led  to  the  adoption  of  other 
and  less  objectionable  means  for  surmounting  the  difficulty. 
If  not,  and  if  after  their  resignation  it  became  necessary  to 
recall  the  ministers  to  office,  "  either  on  the  failure  of  others 
to  form  an  administration,  or  after  a  dissolution,  it  would 
liave  been  of  some  advantage  that  an  opportunity  should 
have  been  afforded  to  the  colony  for  the  full  and  serious  dis- 
cussion of  the  step  proposed." 

This  frank  expression  of  opinion,  in  regard  to  the  course 
he  should  have  pursued,  was  not  intended  as  a  censure  upon 
Sir  George  Bowen,  whose  long  and  distinguished  public 
career,  and  whose  strenuous  efforts  to  settle  the  serious  dis- 
pute between  the  two  houses  in  Victoria,  were  highly  appre- 
ciated by  her  Majesty's  government.^ 


Commons  Tapers,  1878,  C.  2173,  p.  99. 


ILONIES. 


LOCAL  PARLIAMENTS  AND  POWERS  OF  A  GOVERNOR.     509 


s  granted  by 
11."  It  18  an 
lire  a  peiinu- 
lie  executive 
out  a  scheme 
ud  approved 

3  number  of 
ot  been  dealt 
li  a  view  to 
iiment,"  and 
ial  difficulty, 
issing  of  the 

•,  before  con- 
the  proposed 
;he  public  at 
,  on  the  part 
is  obligation, 
the  secretary 
nance  of  the 
notified  his 
to  the  docu- 

ation  of  the 
ition  of  other 
lie  difficulty, 
necessary  to 
Lire  of  others 
on,  it  would 
unity  should 
i  serious  dis- 

to  the  course 
censure  upon 

ished  public 
e  serious  dis- 

lighly  appre- 


Before  the  receipt  of  this  despatch,  Sir  G.  Bowen,  on  Juno  r.ovornor 
29,  1878,  liad  written  to  the  secretarv  of  state,  that,  while  the  ""won's 
removal  of  so  many  judicial  and  civil  officers  had  not  been  colonial 
declared  illegal,  by  any  competent  colonial  authority,  although  s'^^Ttt'iry. 
the  question  liad  been  twice  considered  by  the  Supreme  Court, 
on  a  test  case,  to  try  the  legjvlity  of  the  act  of  government 
in  removing  the  county-court  judges,  on  the  plea  that  they 
did  not  hold  office  during  pleasure,  which  had  resulted  in  the 
dismissal  of  the  complaint,  a  majority  of  the  court  liolding 
that  these  functionaries  were  removable  at  the  pleasure  of 
the  Crown,  he  had  always  considered  these  removals  to  be 
objectionable,  both  on  legal  and  on  constitutional  grounds ; 
"  but  that,  after  anxious  consideration  and  careful  searching 
for  ])recedents,  he  believed  that  they  would  prove  a  less  for- 
midable evil  than  the  practical  dismissal  of  a  ministry  pos- 
sessing an  overwhelming  majority  in  the  Assembly  and  in 
the  constituencies,  and  the  consequent  endangering  of  the 
internal  tranc^uillity  of  the  colony,  and  of  its  existing  happy 
relations  with  the  imperial  government."^ 

In  fact,  owing  in  great  measure  to  the  restraints  put  upon 
the  aggressive  action  of  his  ministers  by  Governor  Bowen, 
only  sixty  individuals  were  permanently  displaced,  out  of  a 
civil  service  numbering  1,626  persons;  and  these  individuals 
received  X 45,000  in  compensation  for  the  loss  of  office,  and 
X  3,500  in  annual  retiring  allowances.  Moreover,  the  civil 
service  of  Victoria  was  notoriously  overgrown,  and  there  had 
long  been  a  demand  for  its  reduction,  and  especially  for  the 
removal  of  certain  incompetent  and  superfluous  officials. 
Had  parliament  been  dissolved  upon  this  question.  Governor 
Bowen  believed  that  it  would  have  strengthened  ministers, 
and  reduced  the  small  band  of  the  opposition.  In  this  event, 
there  was  reason  to  fear  that  the  entire  civil  service  would 
have  been  dismissed  and  replaced,  after  the  American  fashion, 
by  partisans  of  the  Berry  administration.^ 

In  a  further  despatch,  dated  Nov.  22,  1878,  Governor 
Bowen  replied  to  Sir  M.  Hicks-Beach's  despatch  of  Aug.  25. 
His  term  of  service  in  Victoria  having  nearly  expired,  and 
he  being  about  to  assume  another  governorship,  he  took  occa- 


w 


) 


\ ' 


W 


li 

i' 


'  Commons    Papers,     1878,    C.         b  Private  information.     But  la- 
2173,  p.  101.     And  ibid.  1878-79,    ter  official  returns  give  a  much  larger 


C.  2217,  pp.  22-34. 


number  of  removals. 


|! 


i! 


510       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

sion  to  recount  the  leading  events  of  his  administration,  and 
to  exphiin  the  principles  which  had  actuated  him  in  his  go- 
vernment of  the  colony,  during  the  continuance  of  the  exist- 
ing difficulties. 

He  remarks,  in  this  despatch,  that  Mr.  Berry's  ministry 
was  "  the  most  powerful  ministry  hitherto  known  in  Austra- 
lia," and  that  "  it  was  universally  agreed  that  so  strong  was 
the  feeling  in  the  country  during  the  late  parliamentary  crisis 
that  a  dissolution  on  the  question  of  the  reduction  in  the 
civil  service  could  have  .lad  no  result  but  to  restore  Mr. 
Berry  and  his  friends  to  power,  with  greatly-  increased  strength, 
and  regarding  the  governor  '  as  an  aggressor  and  beaten  foe,' 
and  thus  deprive  him  of  the  moderating  influence  by  the  use 
of  which  I  have  been  able  to  avert  many  evils."  Sir  G. 
Bowen  adds,  "  it  would  be  an  act  of  perilous  infatuation  in 
any  colonial  governor  to  remove,  solely  because  he  personally 
disagreed  with  them  on  ;i  measure  of  colonial  policy,  not  re- 
pugnant to  law  nor  to  imperial  interests,  a  ministry  trus'  (1 
by  parliament ;  unLoS  indeed  he  were  well  assured  that  he 
would  be  able  to  replace  them,  either  before  or  after  a  disso- 
lution, by  a  new  ministry,  commanding  at  least  a  working 
majority." 

While  admitting  it  to  be  the  paramount  duty  of  a  colonial 
governor  to  carry  out,  loyally,  his  instructions  from  her  Ma- 
jesty's secretary  of  state.  Governor  Bowen  begged  leave  re- 
spectfully to  represent  ih,\.i  he  had  pursued,  under  very  trying 
circumstances,  as  he  believed  the  only  possible  course,  and 
one  most  in  harmony  with  the  spirit  of  his  instructions,  and 
with  the  precedents  established  by  other  governors  throughout 
the  queen's  dominions. 
The  go-  In  a  postscript  to  this  despatch.  Governor  Bowen  explains 

vcrnorand  ^i^j^j;  \^q  j^r^^j  qj^  j^  former  occasion,  conveyed  a  wrong  impres- 

Ills  rninis*  *  »/  cj         x 

tera.  sion  to  the  colonial  secretary,  in  representing  that  his  minis- 

ters deemed  his  action  "  in  even  questioning  the  course  taken 
with  regard  to"  the  dismissal  of  certain  public  officers  as 
being,  "  to  some  extent,  an  interference  with  the  due  course 
of  responsible  government."  Ministers  had  requested  him  to 
state  that  they  "  entirely  disclaim  "  any  such  opinions.  In 
fact,  "they  have  never  resisted  my  constant  practice  of  dis- 
cussing with  them,  as  with  all  preceding  ministers,  all  public 
topics  whatsoever,  and  of  recommending  the  withdrawal  or 


OLONIES. 


LOCAL  PARLIAMENTS  AND  POWERS  OF  A  GOVERNOR.      511 


stration,  and 
na  in  his  go- 
of the  exist- 

ry's  ministry 
vn  in  Austra- 
o  strong  was 
nentary  crisis 
iction  in  the 
)  restore  Mr. 
ised  strength, 
d  beaten  foe,' 
ce  by  the  use 
als."  Sir  G. 
nfatuation  in 
he  personally 
)olicy,  not  re- 
nistry  trus'  "! 
uired  that  lie 
'  after  a  disso- 
,st  a  working 

of  a  colonial 
from  her  Ma- 
gged leave  re- 
er  very  trying 
e  course,  and 
truetions,  and 
)rs  throughout 

owen  explains 
vrong  impres- 
hat  his  minis- 
3  course  taken 
(lie  officers  as 
he  due  course 
guested  him  to 
opinions.  In 
ractice  of  dis- 
ters,  all  public 
withdrawal  or 


modification  of  all  measures  which  I  may  deem  objectionable. 
They  have  always  been  ready  to  defer  to  my  opinion  on 
matters  of  imperial  interest,  and  also  (I  may  add)  on  many 
questions  of  local  policy,  in  v/hich  they  were  not  fettered  by 
convictions  previously  expressed,  or  by  party  and  parliamen- 
tary exigencies."  ^ 

The   secretary   of  state,  in  replying  to  this  despatch,  on  Colonial 
Feb.  17, 1879,  expresses  his  regret  that  the  arguments  therein  on^the^gQ. 
contained  had  not  sufficed  to  change  his  opinion  in  disap-  vcmor's 
probation  of  Governor  Bowen's  conduct  in  respect  to  the  ^*^"^'^^^- 
removal  of  the  judicial  and  civil  servants  in  Victoria.      A 
non-compliance  with  the  advice  of  his  ministers,  on  this  occa- 
sion, would  not  necessarily  have  led  to  their  resignation,  and 
might  have  induced  them  to  agree  to   a  less  objectionable 
measure  to  meet  the  temporary  financial  difficulty.     His  Ex- 
cellency's despatch,  however,  with  the  other  papers  on  the 
subject,  should  be  published,  as  being  explanatory  of  the  views 
and  principles  which  had  governed  his  actions  in  a  position  of 
much  difficulty.     The  assurance  that  the  Victorian  ministers 
disclaimed  the  opinion  that  the  action  of  the  governor,  in 
questioning  the  course  they  had  taken  in  this  matter,  was  an 
interference  with  the  due  course  of  responsible  government 
had  been  received  by  the  secretary  of  state  with  much  satis- 
faction.! 

Su'  M.  Hicks-Beach  conveyed  to  Governor  Bowen,  in  this 
despatch,  his  desire  that  the  voluminous  correspondence  in 
reference  to  the  constitutional  question  in  Victoria  should 
now  close.  In  fact,  before  the  final  despatch  from  the  secre- 
tary of  state  could  reach  Sir  George  Bowen,  his  successor 
had  arrived,  and  he  himself  had  received  another  appoint- 
ment, as  Governor  of  Mauritius.  It  will  be  necessary  for  us, 
however,  to  retrace  our  steps,  and  note  the  new  phase  which 
this  great  controversy  assumed,  upon  the  reassembling  of  the 
Victorian  parliament. 

On  July  9,  1878,  the  second  session  of  the  ninth  parlia- 
ment of  Victoria  was  opened  by  his  Excellency  Sir  George 
Bowen.  In  the  speech  from  tlie  throne,  mention  was  made 
of  the  disputes  between  the  two  houses  in  the  interpretation 


•»  Commons    Papers,    1878-79,         '  Commons  Papers,  1878-79,  C. 
C.  2217,  pp.  42-48.  2217,  pp.  75,  70. 


Proposed 
amend- 
ment of 
Victorian 
constitu- 
tion. 


512       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

of  their  several  powers  under  the  Constitution  Act,  whereb}'-, 
on  four  distinct  occasions,  the  machinery  of  legishition  had 
been  brought  to  a  standstill ;  and  an  amendment  to  the  con- 
stitution was  suggested,  as  essential  to  the  final  adjustment 
of  the  legislative  functions  of  the  Council  and  the  Assembly. 

On  July  17,  a  ministerial  bill  for  this  purpose  was  submit- 
ted to  the  Assembly  by  Mr.  Berry,  the  premier.  It  proposed 
that  all  money  and  tax  bills  passed  by  the  Assembly,  if  not 
concurred  in  by  the  Council  within  one  month,  should  be 
deemed  to  have  received  the  assent  of  that  house,  and  should 
be  presented  to  the  go^'ernor  for  the  royal  assent ;  and  that 
all  other  bills  passed  in  two  consecutive  sessions  by  the  As- 
sembly shall,  if  rejected  by  the  Council,  in  like  manner  be- 
come law,  —  except  that,  at  the  request  of  the  Legislative 
Council,  any  such  bills  may  be  submitted  to  a  popular  vote  of 
the  electors  of  the  Assembly,  and,  if  approved  at  a  general 
poll,  shall  be  tendered  for  the  ro3-al  assent.-* 

In  despatches  dated  Oct.  31  and  Nov.  28,  1878,  Governor 
Bowen  reported  to  the  secretary  of  state  that  the  two  houses 
of  parliament  had  been  unable  to  agree  upon  the  foregoing  or 
any  other  measure  of  constitutional  reform.  The  further  con- 
sideration of  the  question  had  accordiugly  been  postponed 
until  the  next  session,  to  be  held  in  the  summer  of  1879. 
Meanwhile,  a  parliamentary  delegation,  which  should  include 
the  premier  (Mr.  Graham  Berry),  would  proceed  to  England 
to  confer  with  her  Majesty's  government  on  the  subject.'' 

The  Legislative  Council,  at  this  session,  did  not  refuse  to 
pass  the  appropriation  bill,  although  it  contained  an  item 
granting  three  thousand  pounds  to  defray  the  expense  of  the 
proposed  delegation.  But  they  addressed  a  protest  and  a 
manifesto  to  the  governor  against  the  mission  and  its  pro- 
fessed object,  in  which  they  vindicated  the  course  they  had 
pursued  since  the  introduction  of  responsible  government, 
and  justified  their  opposition  to  the  plans  of  the  dominant 
party  in  the  Assembly.  They  deprecated  the  adoption  of  any 
measure  which  would  destroy  the  present  constitution  of  Vic- 
toria, and  substitute  one  legislative  chamber  for  two;  and 
they  urged  that  the  intended  reform  bill  should  be  first  sub- 
mitted to  the  constituencies  of  the  Assembly  for  their  verdict 


J  Commons  Papers,  1878-79,  C.  2217,  pp.  1-19.       k  Ibid.  p.  35. 


lLO^^ES. 

3t,  Avhereb}'-, 
islation  had 
to  the  con- 
adjustmeut 
e  Assembly, 
was  subm it- 
It  proposed 
mblv,  if  not 
1,  shoukl  be 
!,  and  should 
it;  and  that 
s  by  the  As- 
mannev  be- 
3  Legislative 
ipular  vote  of 
at  a  general 

78,  Governor 
,e  two  houses 
3  foregoing  or 
e  further  con- 
en  postponed 
mer  of  1879. 
hould  include 
1  to  England 
subject.'' 
not  refuse  to 
lined  an  item 
pense  of  the 
irotest  and  a 
and  its  pro- 
Lirse  they  had 
government, 
the  dominant 
[loption  of  any 
tution  of  Vic- 
Ifor  two;   and 
be  first  sub- 
ir  their  verdict 

76»r/.  p.  35. 


LOCAL  PARLIAMENTS  AND  POWERS  OF  A  GOVERNOR.      513 

thereon,  before  it  was  decided  upon  in  the  local  parliament. 
The  attorney-general,  however,  advised  the  governor  that  this 
protest  did  not  in  any  degree  invalidate  or  hinder  the  pro- 
posed delegation  which  would  be  sent  on  behalf  of  the  execu- 
tive government  and  with  the  sanction  of  the  Assembly.' 

Parliament  was  prorogued  on  Dec.  6,  1878.     The  session  Unsatis 
had  not  been  unproductive  of  useful  legislation  ;  but  no  pro-  f'^s'"'"^ ''<^* 
gress  had  been  made  towards  the  solution  oi  the  important  twotn  the 

question  of  constitutional  reform.    In  the  closing  speech  from  j"''* 
^  1  houses. 

the  throne,  reference  was  made  to  the  ministerial  deputation 
to  confer  with  the  imperial  authorities  respecting  existing 
defects  in  the  constitution  act,  with  a  view  to  the  satis- 
factory adjustment  of  the  relations  between  the  Council  und 
the  Assembly. 

In  contravention  of  the  remonstrance  from  the  Legislative 
Council,  the  governor  was  requested  by  ministers  in  Decem- 
ber, 1878,  to  solicit  attention  to  an  address  from  the  Assem- 
bly to  the  queen,  adopted  in  the  preceding  February,  wherein 
would  be  found  the  view  of  the  situation  entertained  by  that 
chamber.  In  this  address,  the  Council  was  charged  with 
reckless  and  unconstitutional  proceedings,  in  endeavouring  to 
limit  "  the  exclusive  right  to  initiate  taxation  and  appropria- 
tion "  which  constitutionally  appertains  to  the  Assembly, 
while  the  Legislative  Council  are  expressly  debarred  from 
amending  any  such  measures.  The  address  further  states 
that,  in  spite  of  repeated  remonstrances,  the  Council  "  persist 
in  claiming  and  attempting  to  exercise  a  power  in  financial 
questions  far  beyond  that  exercised  by  the  House  of  Lords." 
And  thp%  in  reflecting  upon  the  conduct  of  the  governor 
during  the  continuance  of  this  crisis,  the  Legislative  Coun- 
cil had  ignored  fundamental  constitutional  maxims  which  as- 
sign to  the  sworn  councillors  of  the  Crown  the  responsibility 
for  all  public  acts  of  a  sovereign  or  a  governor,  and  refuse  to 
place  any  personal  or  individual  responsibility  for  the  same  on 
the  Crown  or  its  representative.'" 

At  the  same  time,  the  governor  transmitted  to  the  secretary 
of  state  a  ministerial  memorandum  commenting  upon  tlio 
aforesaid  manifesto  from  the  Legislative  Council.   This  memo- 


II 


;  I  I 

Mi 


»   Commons  Papers,  1878-79,  C.  2217,  pp.  49-00,  71,  72. 
"'  lOiil.  p.  UO.  1  r  .      . 

88 


R'ilii 


Ministe- 
rial depu- 
tation to 
Ent^land. 


614     PARLIAMENTARY  GOVERNMENT  TN  THE  COLONIES. 

randum  alleged  that  the  Council,  since  its  establishment  in 
1854,  had  obstructed  general  legislation  by  rejecting  over 
eighty  bills,  and  so  amending  upwards  of  twenty  others  that 
they  had  been  abandoned  by  the  Assembly.  It  jDointed  to 
the  absolute  need  of  a  radical  reform  in  the  constitution  of 
tlie  Council  as  the  only  means  of  bringing  it  into  harmony 
with  the  Assembly  ;  and  it  declared  that  the  proper  functions 
of  a  second  house  were  "  to  offer  counsel  and  to  give  time 
for  deliberation  ;  "  while  both  counsel  and  delay  would  be 
most  readily  appreciated  if  it  was  understood  that  resistance 
had  its  limit  and  could  not  be  protracted  beyond  a  definite 
period." 

It  was  in  anticipation  of  the  resolve  of  the  Legislativ  Coun- 
cil to  refuse  their  assent  to  the  government  schenie  for  the 
amendment  of  the  constitution  act,  that  the  local  ministry 
had  concluded  to  despatch  two  of  tlieir  number  to  England 
to  obtain  an  act  of  the  Imperitil  Parliament  to  amend  the 
constitution  in  the  direction  above  explained.  So  far  back  as 
on  Aug.  6, 1878,  Governor  Bowen  forwarded  to  the  secretary 
of  state,  but  without  comment,  a  ministerial  memorandum  in 
which  this  determination  was  expressed. 

Sir  M.  Hicks-Beach,  in  a  despatch  dated  Oct.  1,  1878, 
written  for  the  information  of  ministers,  plainly  stated  that, 
in  his  opinion,  no  sufficient  cause  had  yet  been  shown  for  the 
proposed  intervention  of  the  Imperial  Parliament.  However 
justifiable  as  a  last  resort,  and  as  the  only  way  to  give  effect 
to  the  deliberately  expressed  will  of  the  people  of  Victoria, 
it  is  evident  that  the  present  proposal  is  altogether  new  and 
includes  changes,  —  such  as  the  plebiscite  which  has  never 
been  directly  submitted  to  the  constituencies  at  a  general 
election.  Under  these  circumstances,  the  rejection  of  this 
scheme  by  the  Legislative  Council  would  not  justify  so  excep- 
tional a  course  as  an  application  to  the  Imperial  Parliament 
to  alter,  without  the  previous  assent  of  the  Victorian  legisla- 
ture, a  constitution  originally  framed  in  the  colony,  and  mere- 
ly confirmed  by  an  imperial  act. 

The  secretary  of  state,  however,  expressed  his  willingness 
to  receive  any  deputation  on  the  subject,  hoping  to  be  able  to 
agree  with  tliem  upon  certain  principles,  as  a  basis  for  the 

»  Commons  Papers,  1878-79,  C.  2217,  pp.  C3-70. 


,ONIES. 

)lishment  in 
jecting  over 
(  others  that 
t  pointed  to 
institution  of 
nto  harmony 
per  functions 
to  give  time 
Uiy  would  be 
liat  resistance 
ond  a  definite 

islativ  Coun- 
.chcxiie  tor  the 
local  ministry 
r  to  England 
to  amend  the 
So  far  back  as 

0  tlie  secretary 
lemorandum  in 

Oct.  1,  18T8, 
ily  stated  that, 

1  shown  for  the 
ent.     However 
y  to  give  effect 
,le  of  Victoria, 
;ether  new  and 
'lich  has  never 
js  at  a  general 
'jection  of  this 
[ustify  so  excep- 
■rial  Parliament 
ictorian  legisla- 
)lony,  and  mere- 

his  willingness 
[ng  to  be  able  to 
a  basis  for  the 

G3-70. 


LOCAL  PARLIAMENTS  AND  POWERS  OF  A  GOVERNOR.      515 

future  settlement  of  this  difficult  question,  which  might  prove 
generally  acceptable  to  all  parties." 

This  despatch  did  not  arrive  until  after  the  question  had 
])een  disposed  of  by  the  Victoria  Assembly.  It  was  at  once 
f  »ublished,  however,  in  the  "Official  Gazette."  Governor  Bowen, 
in  a  despatch  of  Dec.  27,  1878,  declared  his  entire  agreement 
in  the  opinions  therein  expressed,  and  stated  it  to  be  his  own 
conviction  that  public  opinion  in  Victoria  was  still  undecided 
on  the  subject,  though  inclining  to  a  reaction  against  extreme 
views  on  either  side.  h\  one  respect,  however,  he  thought 
the  intended  mission  was  satisfactory.  A  few  years  ago,  the 
Assembly  had  vehemently  repudiated  the  idea  of  imperial  in- 
terference, regarding  it  as  an  infringement  of  the  rights  of 
local  self-government,  whereas  now  the  counsel  and  aid  of  the 
imperial  government  is  directly  invited. 

Believing  that  a  spirit  of  compromise  and  of  mutual  for-  Cons  tu- 
bearance  was  essential  to  the  harmonious  working  of  two  *'"".  '^ 
deliberative  chambers.  Governor  Bowen  was  also  inclined  to  tive  c'ouu- 
think  that  a  nominated  second  chamber  was  preferable  to  one  ^'''■ 
constituted  upon  the  elective  principle.  He  was  of  opinion 
that  the  adoption  of  the  nominative  system,  with  certain  re- 
strictions and  safeguards,  would  ultimately  be  accepted  in 
Victoria,  as  the  best  practicable  escape  from  past  difficulties 
and  dangers.  A  nominated  chamber  would  never  claim  to 
be  "  a  second  House  of  Commons,"  but  would  naturally  imi- 
tate the  wisdom  and  forbearance  of  the  House  of  Lords,  in 
its  attitude  towards,  and  transactions  with,  the  other  house  of 
the  Imperial  Parliament.  And  with  authority  to  the  execu- 
tive government  to  add  fresh  members,  in  extreme  cases,  a 
nominated  chamber  would  be  endowed  with  a  safety-valve, 
against  })rolonged  collisions,  analogous  to  the  power  of  dis- 
solving the  popular  chamber.  Sir  George  Bowen 's  conviv'".- 
tions  on  this  subject  were  the  result  of  long  experience  in 
colonial  governments,  and  were  confirmed  by  his  belief  that, 
in  colonies  possessing  a  nominated  upper  house,  there  had 
never  been  any  serious  collisions  betweeu  the  two  chambers. i' 

Soon  after  the  close  of  the  session,  the  ministerial  delega- 
tion, consisting  of  Mr.  Graham  Berry  (the  premier)  and  Mr. 


,'!l| 


ii 


<»  Coniinons  Parers,  18T8-79,  C.  2217,  pp.  19-21. 
P  Ibul.   pp.  73-75. 


V  I    'I!  "• 


wmmm 


5BCTa^;.:^tta^lVM&igjwtt#*w*»*<;/j*>i^i^iw--^>jw^'r:ag«w<*rjigx.n^.-V.' '.  ^;^*»^;,'^v»<'**k  ■ 


Viotnrian 
delegation 
in  Eng- 
land. 


Departure 
of  Govern- 
or Boweu. 


516       PAKLIAMENTARY  GOVERNilENT  IN  THE  COLONIES. 

C.  H.  Pearson,  proceeded  to  England.  Upon  their  arrival, 
Mr.  Berry  wrote  to  the  secretary  of  state  for  the  colonies, 
referring  to  his  despatch,  above  mentioned,  of  Oct.  1,  1878. 
This  despatch  did  not  reach  Victoria  until  after  the  proroga- 
tion of  parliament,  otherwise  it  would  have  received  con- 
sideration in  parliament.  The  electorate  in  Victoria  were 
agreed  as  to  the  necessity  for  a  reform  which  should  empower 
the  representative  chamber  to  give  effect  to  the  will  of  the 
people,  without  being  controlled,  as  at  present,  by  the  veto  of 
tlie  upper  house.  Ministers  had  therefore  decided  to  apply 
to  the  Imperial  Parliament  for  an  alteration  of  the  sixtieth 
section  of  the  constitution  act,  so  as  to  enable  the  Legislative 
Assembly  to  enact,  in  two  consecutive  sessions,  with  a  ge- 
neral election  intervening,  a  measure  for  the  reform  of  the 
constitution.  Such  an  amendment  was  urgently  needed,  as  it 
is  believed  that  no  ministry  can  carry  on  the  queen's  govern- 
ment satisfactorily  in  Victoria,  if  some  solution  to  the  presen.* 
difficulties  be  i>ot  provided. 

On  Jan.  25,  1879,  Governor  Bowen  addressed  another  de- 
spatch to  the  secretary  of  state,  wherein  he  referred  to  his 
official  career  in  Australa-sia,  during  the  past  twenty  years,  as 
governor,  in  succession,  of  three  great  colonies,  and  to  his  in- 
flexible adherence,  whilst  in  Victoria,  to  the  constitutional 
rulh  of  giving  a  fair  and  just  support,  in  all  matters  not  re- 
pugnant to  law,  or  to  imperial  interests,  to  his  ministers  for 
the  time  being.  He  also  declared  his  belief  that  a  reaction  had 
commenced  in  the  colony  against  the  violence  of  extremists 
on  botli  sides,  which  would  eventually  compel  an  amicable 
settlement  of  the  present  controversy. 

On  Feb.  21,  the  day  before  he  left  for  his  new  gcernment, 
Sir  George  Bowen  sent  final  despatches  to  the  colonial  secre- 
tary, enclosing  copies  of  numerous  farewell  addresses,  from 
various  parts  of  Victoria,  expressing  approval  of  his  public 
conduct,  and  regret  at  his  departure. 

Frecpient  conferences  were  held  at  the  colonial  office  in 
London  between  the  Victorian  delegates  and  the  secretary  of 
state,  and  the  result  of  these  deliberations  was  embodied  in  a 
despatcJi,  addressed  to  the  Marquis  of  Normanby,  who  re- 
placed Sir  G.  Bowen  as  governor  of  Victoria.^      A  copy  of 


<>  Commons  Papers,  1878-79,  C.  2339,  p.  20. 


OLONIES. 

their  arrival, 
the  colonies, 
Oct.  1,  1878. 
the  proroga- 
eceived   con- 
Victoria  were 
)uld  empower 
le  will  of  the 
by  the  veto  of 
ided  to  apply 
»f  the  sixtieth 
;he  Legislative 
IS,  with  a  ge- 
reform  of  the 
ly  needed,  as  it 
ucen's  govern- 
,  to  the  presen- 

ed  another  de- 
referred  to  his 
wenty  years,  as 

.,  and  to  his  iu- 
constitutional 

aatters  not  re- 
lis  ministers  for 

t  a  reaction  had 
[e  of  extremists 

,el  an  amicable 

ew  gc'^ernment, 
colonial  secre- 
addresses,  from 
lal  of  his  public 

lonial  office  in 

the  secretary  of 

s  embodied  in  a 

manby,  who  re- 

iia.«i     A  copy  of 

20. 


LOCAL  PARLIAMENTS  AND  POWERS  OF  A  GOVERNOR.     517 

this  despatch  was  confidentially  commmiicated  beforehand,  to  Imperial 

Mr.  Berry  for  the  information  of  the  delegates.     Tlie  great  jJ^Xc^'^ 

importance  of  this  state  paper,  as  an  expression  of  the  views  Vittorian 

of  her  Majesty's  government  upon  the  leading  points  of  dif-  ^"*I*"^'-'^- 

ference  between  the  two  houses  in  Victoria,  justifies  us  in 

presenting  it  to  our  readers  without  abridgment.     It   is   us 

follows :  — 

Downing  Street,  May  3,  1879. 

My  Lord,  —  In  his  despatch  of  Dec.  27, 1878,*  Sir  George 
Bowen  informed  me  that  tlie  Legislative  Assembly  of  Victoria 
had  authorized  Mr.  Graham  Berry,  the  chief-secretary  and 
prime  minister,  and  Mr.  Pearson,  a  member  of  the  Assembly, 
to  proceed  to  London,  as  commissioners  or  delegates,  to  solicit 
my  advice  and  assistance,  and  to  lay  before  me  the  views  on 
the  political  affairs  of  Victoria  entertained  by  the  majority  of 
the  Assembly ;  and  by  the  same  mail  he  forwarded  to  me  a 
statement  that  had  been  adopted  by  the  Council,  and  other 
documents  bearing  upon  the  case.  Shortly  after  the  arrival 
of  Mr.  Berry  and  Mr.  Pearson  in  England,  I  received  them  at 
this  office,  and  Mr.  Berry  then  left  with  me  the  letter,  of  which 
I  enclose  a  copy.  The  objects  of  their  mission  have  been 
since  fully  discussed  between  us  at  several  interviews,  and 
I  will  now  proceed  to  convey  to  you  the  opinion  which  her 
Majesty's  government  have  formed  upon  the  important  ques- 
tion at  issue,  after  full  consideration  of  the  statements  that 
have  been  placed  liefore  them  on  behalf  of  the  government 
and  Assembly  of  Victoria  on  the  one  side,  and  of  the  Council 
on  the  other. 

In  a  memorandum  dated  Aug.  6,  1878,  Sir  George  P>ow- 
en's  ministers  had  anticipated  that  they  might  be  "  com- 
pelled to  despatch  to  England,  on  behalf  of  and  with  the 
express  sanction  of  the  Legislative  Assembly,  commi.ssioners 
chosen  from  leading  members  of  that  house,  to  lay  before  her 
Majesty's  imperial  government  the  matured  result  of  its  de- 
liberation "  on  constitutional  reform,  "  with  a  view  to  get 
that  result  embodied  in  an  act  of  the  imperial  legisiatuie.'' 
On  the  receipt  of  that  memorandum,  I  lost  no  time  in  placing 
before  the  Victorian  government  the  considerations  which 
disposed  me  to  the  opinion  that  no  sufficient  cause  had  been 


i    n'l 


m 


m 


ij; 


t  5- 


*   l 


I    :  I 


*  Commons  Papers,  1878-79,  C.  2217,  p.  73. 


! 


618    PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

shown  for  the  intervention  of  the  Imperial  Parliament  in  the 
manner  suggested. 

The  rec^uest  urged  by  Mr.  Berry  in  his  letter  of  Feb.  26, 
that  Parliament  should,  "  by  a  siniple  alteration  of  the  sixtieth 
section  of  the  constitutional  act  of  Victoria,  enable  the  Legis- 
lative Assembly  to  enact,  in  two  distinct  annual  sessions, 
with  a  general  election  intervening,  any  measure  for  the 
reform  of  the  constitution,"  is,  in  my  opinion,  even  more 
open  to  objection  than  the  proposal  I  understood  him  to  con- 
vey in  his  memorandum  of  Aug.  6.  But  it  is  not  necessary 
to  discuss  tlie  merits  of  this  or  any  other  proposal,  for,  though 
fully  recognizing  the  confidence  in  the  mother  country 
evinced  by  the  reference  of  so  important  a  question  for  the 
counsel  and  aid  of  the  imperial  government,  I  still  feel  that 
the  circumstances  do  not  yet  justify  any  imperial  legislation 
for  the  amendment  of  that  constitution  act  by  which  self- 
government  in  the  form  which  Victoria  desired  was  conceded 
to  her,  and  by  which  the  power  of  amen  ling  the  constitution 
was  expressly,  and  as  an  essential  incident  of  self-govern- 
ment, vested  in  tlie  colonial  legislature  with  the  consent  of 
the  Crown.  The  intervention  of  the  Imperial  Parliament 
would  not,  in  my  opinion,  be  justifiable,  except  in  an  extreme 
emergency,  and  in  compliance  with  the  urgent  desire  of  the 
people  of  the  colony  when  all  available  efforts  on  their  part 
had  been  exhausted.  But  it  would,  even  if  thus  justified,  be 
attended  with  much  diiRculty  and  risk,  and  be  in  itself  a 
matter  for  grave  regret.  It  would  be  held  to  involve  an  ad- 
mission that  the  great  colony  of  Victoria  was  compelled  to 
ask  the  Imperial  Parliament  to  resume  a  power  which,  de- 
siring to  promote  her  welfare  and  believing  in  her  capacity 
for  self-government,  the  Imperial  Parliament  had  voluntarily 
surrendered,  and  that  this  request  was  made  because  the 
leaders  of  political  parties,  from  a  general  want  of  the  mode- 
ration and  sagacity  essential  to  the  success  of  constitutional 
government,  had  failed  to  agree  upon  any  compromise  for  ena- 
bling the  business  of  the  colonial  parliament  to  be  carried  on. 

It  is,  nevertheless,  important  that  the  question  should  be 
settled  as  soon  as  possible,  where  it  can  properly  be  dealt 
with,  —  that  is,  in  the  colonial  parliament;  and  I  shall  be 
glad  if,  by  the  observations  which  I  am  about  to  make,  I  can 
remove  some  part  of  the  misunderstanding  which  has  been 
amongst  the  chief  obstacles  to  such  a  settlement. 


:OLONIES. 
liament  in  the 

r  of    Feb.  26, 
of  the  sixtieth 
ible  the  Legis- 
nual   sessions, 
easu.re  for  the 
on,  even  more 
od  him  to  con- 
not  necessary 
sal,  for,  though 
other    country 
uestion  for  the 
still  feel  that 
3rial  legislation 
by  which  self- 
[1  was  conceded 
;he  constitution 
of  self-govern- 
the  consent  of 
^ial   Parliament 
t  in  an  extreme 
t  desire  of  the 
s  on  their  part 
lus  justified,  be 
be  in  itself  a 
involve  an  ad- 
,s  compelled  to 
3wer  which,  de- 
in  her  capacity 
lad  voluntarily 
because   the 
[it  of  the  mode- 
f  constitutional 
jromise  for  ena- 
0  be  carried  on. 
ition  should  be 
operly  be  dealt 
and  I  shall  be 
to  make,  I  can 
svhich  has  been 
jnt. 


LOCAL  PARLIAMENTS  AND  POWERS  OF  A  GOVERNOR.     519 

Following  the  generally  accepted  precedent,  the  consti- 
tution act  of  Victoria  established  two  legislative  chambers, — 
the  Council  and  Assembly,  —  and  laid  down,  to  a  certain  ex- 
tent, their  mutual  relations  ;  of  which,  it  appears  to  me,  a 
better  definition  rather  than  an  alteration  is  now  required. 
For,  as  no  party  in  Victoria  desires  to  abolish  the  Council,  I 
feel  confident  that  there  can  be  no  wish,  in  the  words  of  your 
ministers,  to  "reduce  it  to  a  sham,"  or,  by  depriving  it  of  the 
powers  which  properl}'^  belong  to  a  second  ciiambe'*,  to  confer 
on  the  Assembly  a  complete  practical  supremacy,  uncontrolled 
even  by  that  sense  of  sole  responsibility  which  might  exert  a 
beneficial  influence  on  the  action  of  a  single  chamber.  Nor 
can  I  suppose  that  the  extreme  view  of  the  position  of  the 
Council,  which  it  has  recently  to  a  great  extent  itself  dis- 
claimed, can  be  supported  by  any  who  have  sufficiently  exam- 
ined the  subject. 

The  recent  differences  between  the  two  houses  of  Vic- 
toria, like  the  most  serious  of  those  which  have  preceded  it, 
turned  upon  the  ultimate  control  of  finance.  I  observe  that 
the  address  of  the  Legislative  Assembl}'  of  Feb.  14,  1878, 
dwells  almost  exclusively  on  the  necessity  of  securing  to  that 
house  sufficient  financial  control  to  enable  adequate  supplies 
to  be  provided  for  the  public  service,  and  it  is  prominently 
urged  in  Mr.  Berry's  letter  of  Feb.  26,  in  proof  of  the  neces- 
sity for  finding  some  solution  of  the  present  constitutional 
difficulty,  that  "  scarcely  a  year  passes  but  it  becomes  a  ques- 
tion whether  the  supplies  necessary  for  the  queen's  service 
will  be  granted."  But  this  difficulty  would  not  arise  if  the 
two  houses  of  Victoria  were  guided  in  this  matter,  as  in 
others,  by  the  practice  of  the  Imperial  Parliament,  the  Coun- 
cil following  the  practice  of  the  House  of  Lords,  and  the 
Assembly  that  of  the  House  of  Connnons.  The  Assembly, 
like  the  House  of  Commons,  would  claim  and  in  practice 
exercise  the  right  of  granting  aids  and  supplies  to  the  Crown, 
of  limiting  the  matter,  manner,  measure,  and  time  of  such 
grants,  and  of  so  framing  bills  of  supply  that  these  rights 
should  be  maintained  inviolate  ;  and  as  it  would  refrain  from 
annexing  to  a  bill  of  aid  or  supply  any  clause  or  clauses  of  a 
nature  foreign  to  or  different  from  the  matter  of  such  a  bill, 
so  the  Council  would  refrain  from  any  steps  so  injurious  to 
the  public  service  as  the  rejection  of  an  appropriation  bill. 


w 


i  1 


'f~ 


Imperial 
(U'spiUcli 
on  (lis- 
putcH  in 
Victoritt. 


\i  if 


:    i 


520       TARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

It  would  1)0  well  if  tlio  two  houses  in  Victoria,  accept- 
ing the  view  which  I  luiv^  thus  indicated  of  their  nnitual 
rehitions  in  tliis  important  i)art  of  their  work,  would  niain- 
tahi  it  in  future  hy  sut.h  a  geiuual  understanding  as  would 
be  most  in  harmony  witli  the  spirit  of  constitutional  govern- 
ment. Hut,  after  all  that  has  passed,  it  may  be  considered 
necessary  to  deiine  those  relations  more  closely  than  has  been 
attempted  here,  and  this  might  be  effected  either  by  adopt- 
ing a  joint  standing  order,  as  was  proposed  in  1867,  or  by 
legislation.  Of  these,  the  fornier  would  seem  to  be  the  pre- 
ferable course,  for  there  might  be  no  slight  difliculty  in  fram- 
ing a  statute  to  declare  the  conditions  under  which  one 
liouse  of  parliament,  in  a  colony  having  two  houses,  should 
exercise  or  refrain  from  exercising  the  powers  which,  though 
conferred  upon  it,  must  not  always  be  asserted.  lUit  I  must 
add  that  the  clearest  definition  of  the  relative  position  of  the 
two  houses,  however  arrived  at,  would  not  sulHce  to  prevent 
collisions,  unless  interpreted  with  that  discretion  and  mutual 
forbearance  which  has  been  so  often  exemplified  in  the  his- 
tory of  the  Imperial  Parliament. 

If,  however,  it  should  be  felt  that  the  respective  positions 
of  the  two  houses  in  matters  of  taxation  and  appro})riation  can 
only  be  defined  by  an  amendment  of  the  Constitution  Act, 
there  maybe  other  points  —  such  as  the  proposal  to  enact  that 
a  dissolution  of  parliament  shall  apply  to  the  Legislative  Coun- 
cil as  well  Tts  the  Assembly  —  that  might  usefully  be  consi- 
dered at  the  same  time  ;  but  I  refrain  from  discussing  them 
now,  feeling  that  their  merits  can  best  be  appreciated  in  the 
colony  itself. 

It  has  been  urged  that  some  legislation  is  necessary  to 
ensure  mechanically  the  termination,  after  reasonable  discus- 
sion and  delay,  o''  a  prolonged  difference  between  the  two 
houses  upon  quest  ons  not  connected  with  finance.  I  do  not 
5'et  like  to  admit  that  the  Council  of  Victoria  will  not,  like 
similar  bodies  in  other  great  colonies,  without  any  such  strin- 
gent measure,  recognize  its  constitutional  position,  and  so 
transact  its  business  that  the  wishes  of  the  people,  as  clearly 
and  repeatedly  expressed,  should  ultimately  prevail ;  nor  have 
I  yet  seen  any  suggestion  for  such  legislation  which  I  can 
deem  free  from  objection. 

I  hope  that  the  views  which  I  have  expressed  may  not 


::0L0NiES. 

toria,  accept- 
tlieir  mutual 
,  would  main- 
ling  a^4  would 
ional  govern- 
1)0  considered 
than  has  been 

I  her  by  adopt- 

II  18G7,  or  by 
to  be  the  pre- 
iculty  in  fram- 
er  which   one 
houses,  should 
wliich,  though 
.     lUit  I  must 
position  of  the 
[ice  to  prevent 
on  and  mutual 
led  in  the  his- 

ective  positions 

propriation  can 

institution  Act, 

ill  to  enact  that 

gislative  Coun- 

fully  be  consi- 

iscussing  them 

eciated  in  the 

Is  necessary  to 
Isonable  discus- 
Lween  the  two 
Ince.  I  do  not 
la  Avill  not,  like 
]any  such  strin- 
)sition,  and  so 
)ple,  as  clearly 
3vail ;  nor  have 
n  which  I  can 

tessed  may  not 


T!' 


LOCAL  TARLIAMENTS  AND  POWERS  OF  A  G0V1:RN011.     521 

1)0  witliout  innucnco  in  securing  such  a  mutual  agreement 
between  tlie  two  liouses  as  to  remove  any  necessity  lor  im[)e- 
rial  k'gislation  ;  and  that,  as  both  ])artics  profess  to  desire  only 
what  is  reasonable,  and  a:^  there  hiis  l)een  now  an  interval  for 
reflection,  a  satisfactory  and  enduring  solution  of  the  difVi- 
culty  may  be  arrived  at  in  the  colony.  The  cours«!  of  action 
which  her  Majesty's  government  might  adopt,  should  this 
hope  unfortunat(!ly  bo  disa[)pointed,  must  in  a  great  degree 
dei)end  upon  the  circumstances  wiiich  may  then  exist ;  but  I 
can  hardly  anticipate  that  the  Imperial  Parliament  will  con- 
sent to  disturb  in  any  way,  at  the  instance  of  one  house  of 
the  colonial  legislature,  the  settlement  embodied  in  the  Con- 
stitution Act,  unless  the  Council  should  refjise  to  concur  with 
the  Assendjly  in  some  reasonable  i)roi)osal  for  regulating  tho 
future  relations  of  the  two  houses  in  financial  matters  in 
accordance  with  the  high  constitutional  precedent  to  which  I 
have  referred,  and  should  persist  in  such  refusal  after  the  i)ro- 
posals  of  the  Assembly  for  that  purpose,  an  appeal  having 
been  made  to  the  constituencies  on  the  subject,  liave  been 
ratified  by  the  country,  and  again  sent  up  by  the  Assembly 
for  the  consideration  of  the  Council. 

I  have,  «Scc. 
(Signed)  M.  E.  IIicks-Beacii. 

The  x-  ~8t  IIonoukable  the  Marquis  of  Normandy. 

It  will  be  observed  that  the  preceding  despatch,  while  should  an 
it  suggests  a  reasonable  method  of  solving  the  con-  House  he 
stitutional   question   wh'ch  has  for  so  long  a   period  t'cettd or 
distracted  the  public  mind  in  Victoria,  abstains  from  nated? 
endorsing  the  opinion  so  emphatically   expressed   by 
Sir  George  Bowen,  that  a  change  in  the  composition  of 
the  Legislative  Council  by  the  adoption  of  the  principle 
of  nomination  in  lieu  of  that  of  election  was  desirable. 

This  omission  is  significant.  It  implies  that  in  the 
judgment  of  her  Majesty's  government  no  such  change 
would  suffice  to  remedy  existing  evils,  and  to  establish 
harmonious  relations  between  the  two  chambers  in 
Victoria.  The  experience  of  other  British  colonies,  not 
only  in  Australia  but  elsewhere  throughout  the  empire, 


'   !| 


m 


■  rtit-7--  .winmiy!! 


Colonial 

uppiT 

chambers. 


522       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

does  not  corroborate  Sir  George  Bowen's  idea  that  colo- 
nies possessing  a  nominated  upper  house  are  exempt 
from  serious  disputes  as  to  the  rchitive  rights  Jind  privi- 
leges of  the  two  branches  of  the  legislature,  especially 
in  matters  of  supply.  A  nominated  upper  chamber, 
though  luidoubtedly  preferable  in  certain  respects  to  an 
elected  body,  constitutes  no  efficient  or  effectual  check 
to  democratic  ascendancy.  And  it  is  obviously  not  in 
this  direction  that  we  may  expect  to  find  the  point  of 
agreement  which  shall  reconcile  the  conflicting  claims 
of  colonial  legislative  bodies.  New  South  Wales,  the 
dominion  of  Canada,  and  Queensland,  severally  possess 
a  nominated  upper  house,  and  yet  difficulties  similar  to 
those  which  have  so  long  agitated  Victoria  are  not  un- 
known in  these  colonies. 

In  the  Assembly  of  New  South  Wales,  resolutions 
have  been  passed  at  the  instance  of  the  premier,  with- 
in the  present  year  (1879),  condemning  the  action  of 
the  upper  house  in  repeatedly  rejecting  an  important 
government  measure,  and  to  remedy  this  grievance  it 
is  proposed  to  make  that  chamber  elective.' 

In  Canada,  the  Senate,  or  Upper  House,  have  repeat- 
edly exhibited  an  independent  spirit,  and  the  expedi- 
ency of  curbing  their  powers  in  respect  to  financial 
questions  has  been  mooted,  at  any  rate,  by  the  party 
now  in  opposition. 

The  colony  of  New  Zealand  also  possesses  a  nomi- 
nated Legislal'  3  Council,  and  hitherto  no  collision  has 
occurred  between  the  two  chambers,  since  the  intro- 
duction of  representative  institutions,  which  has  led  to 
any  serious  results.  Nor  is  there  any  other  special 
reason  for  altering  the  constitution  of  the  upper 
chamber.  Nevertheless,  on  Sept.  18,  1878,  a  series  or 
resolutions  were  submitted  to  the  House  of  Representa- 


r  t 


'  The  Colonies  "  uewspaper,  Aug.  16,  Sept.  13  aud20,  1S70. 


COLONIES. 

ca  that  colo- 
are  exempt 
lits  and  privi- 
ne,  especially 
per  chamber, 
respects  to  an 
Ofectual  check 
viously  not  in 
d  the  point  of 
flicting  claims 
th  Wales,  the 
;erally  possess 
Ities  similar  to 
ria  are  not  un- 

les,  resolutions 
premier,  with- 
ig  the  action  of 
Ig  an  important 
is  grievance  it 

ve.' 

;e,  have  repeat- 
md  the  expedi- 
ct  to  financial 
e,  by  the  party 

• 

>ssesses  a  nomi- 
no  collision  has 
since  the  intro- 
vhich  has  led  to 
y  other  special 
of   the    upper 
878,  a  series  or 
leofRepresenta- 

13aud20, 1S79. 


LOCAL  PARLIAMENTS  AND  POWERS  OF  A  GOVERNOR.      523 

tives  avowedly  for  the  purpose  of  making  the  Upper 
House  a  more  independent  body,  by  changing  its  con- 
stitution from  a  nominated  to  an  elective  chamber.  It 
was  proposed  to  effect  this  alteration  gradually,  as 
vacancies  should  occur  in  the  Council ;  such  vacancies 
to  be  filled  up  by  the  election  of  members  by  ballot  by 
the  House  of  Representatives,  but  so  that  the  number 
of  the  Legislative  Council  should  not  exceed  one-half  of 
the  number  of  the  lower  house.  It  was  further  pro- 
posed that  when  bills  have  been  rejected  in  two  succes- 
sive sessions  by  either  house,  both  houses  should  sit 
together  and  decide  by  a  two-thirds  vote  of  the  united 
body,  upon  the  question  whether  such  bills  should  pass 
and  be  presented  for  the  sanction  of  the  Crown. 
Ministers,  however,  disapproved  of  this  scheme.  The 
Attorney-General  said,  "  he  was  opposed  to  an  elected 
upper  house,  and  believed  that  it  would  become  the 
greatest  curse  to  our  constitution."  He  had  always 
thought  "  that  by  having  a  nominated  Legislative  Coun- 
cil, and  by  having  the  number  of  its  members  unlimited, 
there  was  always  an  available  power  under  the  consti- 
tution act,  which  would  prevent  a  dead-lock.  Without 
such  a  power,  collisions  will  always  occur,"  as  we  see 
in  other  colonies.  After  a  debate,  the  previous  ques- 
tion was  put  on  these  resolutions  and  negatived.' 

On  the  other  hand,  stringent  measures  of  reform, 
designed  to  restrain  the  freedom  of  elective  legislative 
councils,  are  in  contemplation,  not  only  in  Victoria,  but 
in  two  other  colonies  where  an  elective  upper  chamber 
exists ;  namely,  in  Tasmania,*  and  in  South  Australia." 

We  may,  therefore,  safely  conclude  that  the  true 
remedy  for  legislative  disputes  is  to  be  found  not  in 
any  change  of  tenure,  or  in  a  formal  redistribution  of 


•  New  Zealand  Pari.  Deb.  vol.  xxix.  p.  246. 

«   See  post,  p.  555.     "  The  Colonies,"  of  Aug.  16,  1879. 

«  Ibid.  Aug.  30,  Sept.  20,  aud  Dec.  G,  1871). 


m^i 


1  V  1 


i 
(  ii 

I; 

.  ,ti 

i  !i 

■  i'- 

k 


J   I  "gi'iHWW^iBWW 


Victoria 
constitu- 
tion re- 
form bill. 


! 


524       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

powers  on  the  part  of  either  house,  but  in  the  general 
acceptance  by  both  houses  of  counsels  of  moderation, 
and  in  the  avoidance  by  eac)'  of  the  assertion  of  ex- 
treme rights.  It  is  to  such  a  temperate  and  forbearing 
policy  in  the  two  houses  of  the  Imperial  Parliament 
towards  each  other,  that  their  good  understanding  and 
cordial  co-operation,  for  so  long  a  period,  is  mainly 
attributable.  . 

When  the  parliament  of  Victoria  reassembled,  in  July,  1879, 
Mr.  Graham  Berry  introduced  into  the  Legislative  Assembly 
a  bill,  as  a  government  measure,  to  reform  the  constitution  of 
the  colony.  This  bill  proposed  to  confer  upon  the  Legislative 
Assembly  absolute  control  over  taxation  and  expenditure.  And 
to  provide  that  all  public  money  shall  be  available  for  appropri- 
ation immediately  after  it  has  been  voted  by  the  Assembly.^ 
It  also  provided  for  the  gradual  substitution  of  a  nominee 
Legislative  Council  in  place  of  the  present  elective  body; 
and  that  bills  passed  by  the  Assembly  and  twice  rejected 
by  the  upper  house  shall  be  referred  by  the  governor  to  a 
plebiscite^  at  which  the  decision  of  a  majority  of  the  people 
shall  be  final,  subject,  however,  to  the  assent  of  the  governor. 
But  the  third  reading  of  this  bill  having  been  voted  in  the 
Assembly  by  one  less  than  the  absolute  majority  re(iuired 
by  the  constitution  act,  it  was  withdrawn.  Ministers  then 
advised  a  dissolution,  to  which  the  Governor  consented.  The 
elections  will  take  place  early  in  the  new  year.* 

The  result  of  the  renewed  attempt  to  dispose  of  this  much 
controverted  question  within  the  colony  itself,  without  re- 
course to  imperial  authority  to  change  the  constitution,  is  not 
yet  known.  But  there  are  indications  that  the  people  of 
Victoria  are  not  willing  to  destroy  a  political  system  which,  if 
wisely  and  temperately  administered,  would  secure  to  them 
the  blessings  of  beneficent  rule  and  good  government,  and 
that  some  reasonable  ground  of  compromise  may  yet  be  found 
which  shall  reconcile  contending  parties,  witliout  introducing 
novel  and  objection r.ble  features  into  the  constitution  of  Vic- 

'  But  on  the  second  reading  of  the  reform  bill,  on  August  20,  Air.  Berry 
intimated  that  he  was  prepared  to  abandon  this  clause.  •'  The  Colonies," 
Oct.  18,  187}). 

*  "  The  Colonies,"  Aug.  2,  Sept.  20,  Dec.  13  and  20,  1879. 


)LONIES. 

uhe  general 
noderation, 
•tion  of  ex- 
1  forbearing 
Parliament 
anding  and 
,  is  mainly 

in  July,  1879, 
ive  Assembly 
onstitution  of 
lie  Legislative 
snditine.  And 
e  for  appr(ipri- 
le  Assembly/ 
of  a  nominee 
elective  V)ody; 
twice  rejected 
governor  to  a 
I  of  the  people 
t  the  governor. 
!n  voted  in  the 
ority  reiiuired 
Ministers  then 
msented-     The 

w 

■ 

ie  of  this  much 
If,  without  re- 
stitution, is  not 
the  people  of 
ystem  which,  if 
secure  to  them 
)vernment,  and 
\y  yet  be  found 
out  introducing 
ititution  of  Vic- 

igust20,Mr.l?erry 
«' The  Colonies," 

0,  1879. 


DISCRETION  IN  THE  DISSOLUTION  OF  A  PARLIAMENT.     525 

toria,  which  find  no  parallel  in  any  other  colony  under  the 
British  Crown. 

In  concluding  this  section,  it  is  unnecessarj'-  to  com-  Position 
ment  any  further  upon  the  position  of  a  constitutional  vernon 
governor  upon  the  occurrence  of  diflerences  between 
the  legislative  chambers.  This  point  has  been  made 
sufficiently  clear  in  our  review  of  the  preceding  case. 
It  has  been  therein  shown  that,  so  long  as  the  two 
houses  keep  within  the  limits  of  the  law,  it  is  not  the 
duty  of  the  governor  to  interfere  in  discussions  or  dis- 
putes in  regard  to  their  relative  powers  and  privileges, 
save  only  by  advice  or  suggestions  in  the  capacity  of  a 
mediator.  Should  these  disputes  become  irreconcilable, 
a  governor  may  then  authoritatively  interpose,  and,  with 
the  consent  of  his  ministers,  dissolve  the  parliament,  and 
thereby  bring  public  opinion  directly  to  bear  upon  the 
question  at  issue  and  upon  the  parties  to  the  contestation. 

We  will  now  proceed  to  consider  tlie  powers  which 
appertain  to  a  governor  in  the  administration  of-  this 
prerogative. 

c.  Discretion  of  the  sovereign  or  her  representative  in  granting  or 
refusing  to  ministers  a  dissolution  of  Parliament. 

The  prerogative  of  the  Crown  to  dissolve  an  existing  prcroua- 
Parliament,  and  to  summon  for  advice  and  assistance 
another  Parliament,  which  sliall  consist,  so  far  as  the 
popular  chamber  is  concerned,  of  an  assembly  newly 
chosen  by  the  constituent  body,  is  one  of  immense 
utility  in  bringing  into  harmonious  co-or  n'ation  the 
several  portions  of  the  body-politic. 

This  prerogative  m»ay  be  exercised  by  the  sovereign 
at  ai:y  time ;  subject  only  to  the  constitutional  rule 
which,  under  parliamentary  government,  necessitates 
that  it  sliall  bo  advised  and  approved  by  a  minister  of 
state,  directly  responsible  to  the  House  of  Commons. 


tivi"  of  dig- 
sulutiuii. 


!il 

fi' 


l\ 


'1i 


!  ' 


:  !'i 


ii 


*  .^*^  MMfm-Mtpa 


626       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

The  prerogative  power  of  dissolving  Parliament  has 
been  aptly  termed  "  the  most  popular  of  all  the  pre- 
rogatives of  the  Crown,  which  can  never  be  exercised 
except  for  the  benefit  of  the  people,  because  it  makes 
them  arbiter  of  the  dispute,"''  —  appealing  to  them, 
in  the  last  resort,  to  determine  the  policy  which  shall 
prevail  in  the  government  of  the  nation,  and  the 
minister  by  whom  that  policy  shall  be  carried  out. 

From  the  serious  consequences  which  may  follow  the 
administration  of  this  prerogative,  it  is  manifest  that 
it  should  be  resorted  to  with  great  caution  and  for- 
Whenand  bcarancc.  Frequent,  unnecessary,  or  abrupt  dissolu- 
exercisecL  tions  of  Parliament  inevitably  tend  to  ''  blimt  the 
edge  of  a  great  instrument,  given  to  the  Crown  for 
its  protection ;  "  and,  whenever  they  have  occurred, 
they  have  been  fraught  with  danger  to  the  common- 
wealth. 

The  personal  sanction  of  the  sovereign  —  after  de- 
liberate inquiry,  and  in  the  exercise  of  an  unfettered 
judgment  —  must  be  given  to  the  advice  or  recom- 
mendation of  a  minister,  whenever  it  is  proposed  to 
have  recourse  to  the  prerogative  of  dissolution.  "  Upon 
such  an  occasion,  the  sovereign  ought  by  no  means  to 
be  a  passive  instrument  in  the  hands  of  his  ministers : 
it  is  not  merely  his  right,  but  his  duty,  to  exercise  his 
judgment  in  the  advice  they  may  tender  to  him.  And 
though,  by  refusing  to  act  upon  that  advice,  he  incurs 
a  serious  responsibility,  if  they  should  in  the  end 
prove  to  be  supported  by  public  opinion,  there  is,  per- 
haps, no  case  in  which  this  responsibility  may  be  more 
safely  and  more  usefully  incurred  than  when  mini- 
sters have  asked  to  be  allowed  to  appeal  to  the  peo- 
ple from  a  decision  pronounced  against  them  by 
the  House  of  Commons.     For  they  might  prefer  this 


»   S.r  C.  Cavnn  Duffy's  minute,  to  Governor  Canterbury,  Commons 
I'apers,  1873,  vol.  1.  p.  J15. 


Ch 


)N1ES. 

[Tient  has 
the  pre- 
exercised 
it  makes 
to  them, 
liich  shall 

and  the 
ed  out. 
follow  the 
lifest  that 
1  and  for- 
pt  dissolu- 
blunt  the 
Crown  for 

occurred, 
e  common- 

-  after  de- 
unfettered 
or   recom- 
)roposed  to 
m.    ''Upon 

means  to 
ministers : 
xercise  his 
him.  And 
,  he  incurs 
n  the  end 
ere  is,  per- 
il y  be  more 

hen  mini- 
|to  the  pco- 
It   them  by 

prefer  this 

jury,  Commons 


DISCRETION  IN  THE  DISSOLUTION  OF  A  PARLIAMENT.     527 

request  when  there  was  no  probability  of  the  vote  of 
the  house  being  reversed  by  the  nation,  and  when  the 
measure  would  be  injurious  to  the  public  interests.  In 
such  a  case,  the  sovereign  ought  clearly  to  refuse  to 
allow  a  dissolution."  ^ 

The  sovereign  has  an  undoubted  constitutional  right  Discretion 
to  withhold  his  consent  to  the  application  of  a  minister  (jrow*ii. 
that  he  should  dissolve  Parliament.  But,  on  the  other 
hand,  the  Crown  can  only  grant  a  dissolution  upon  the 
advice  of  a  responsible  minister.'  If  the  minister  to 
whom  a  dissolution  has  been  refused  is  not  willing 
to  accept  the  decision  of  the  sovereign,  it  is  his  duty  to 
resign.  He  must  then  be  replaced  by  another  minister, 
who  is  prepared  to  accept  full  responsibility  for  the  act 
of  the  sovereign,  and  for  its  consequences,  in  the  judg- 
ment of  Parliament."^ 

It  is  evident,  therefore,  that  the  sovereign  —  when.  Must  be 
in  the  exercise  of  this  prerogative,  a  dissolution  is  either  i,y''a'"^''^ 
granted  or  refused  —  must  be  sustained  and  justified  "'*^^'''- 
by  the  agreement  of  a  responsible  minister.     If  this  be 
constitutionally  necessary,  as  respects  the  sovereign,  it 
is  doubly  so  in  the  case  of  a  governor.     For  the  sove- 
reign is  not  personally  responsible  to  any  earthly  au- 
thority ;  but  a  governor  is  directly  responsible  to  the 
Crown  for  every  act  of  his  administration.^' 

Whenever  the  popular  chamber  refuses  its  confi- 
dence to  ministers,  the  question  whether,  in  doing 
so,  it  has  correctly  expressed  the  opinion  of  the  coun- 
try may  properly  be  submitted  to  the  test  of  a  dissolu- 
tion of  Parliament."  Nevertheless,  in  the  words  of 
Charles   James   Fox,   quoted   by  Sir   Robert  Peel  in 


nu- 


y  Todd,  Pari.  Govt.  vol.   ii.   p.  *"  rjnvornor  Normanbv,  in  Xcw 

408.  _  Zealand  Pari.  Pai)ers,  1877,  A.  7, 

*  R.     A.     Fr(!onian,    in    Xorth  p.  ;{. 
American   Ilcviow,   vol.   cxxix.   p.         «  Todd,   Pari.  Govt.  vol.  ii.  p. 

IM.  400. 

»  Todd,  Pari.  Govt.  vol.  i.  pp. 
155,  20U. 


•■Ii 


^ 


■  >i-  liliririiw 


1.    f. 


Prece- 
dents. 


New 

BrunS' 

wick 


528       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

1841,  it  is  dangerous  to  admit  of  any  other  recognized 
organ  of  public  opinion  than  the  House  of  Commons. 
So  long  as  Parliament  may  be  reasonably  presumed  to 
represent  the  wishes  of  the  people,  it  is  not  necessary 
to  go  beyond  Parliament  to  ascertain  them.  But, 
when  this  point  is  doubtful,  the  Constitution  permits 
of  a  dissolution,  for  the  purpose  of  solving  the  doubt.** 
It  rests  with  the  sovereign,  however,  —  or,  in  a 
colony,  with  the  representative  of  the  sovereign,  —  to 
determine  the  question  whether,  in  a  particular  in- 
stance, a  dissolution  of  Parliament  shall  or  shall  not  be 
allowed.  An  examination  of  the  following  precedents 
will  enable  us  to  arrive  at  certain  additional  principles, 
applicable  to  the  exercise  of  this  prerogative  by  a  con- 
stitutional governor. 

We  have  already  noted,  in  a  former  section,  a  remarkable 
case  which  occurred  in  New  Brunswick  in  1855,  wherein  the 
liquorlaw.  governor,  being  impressed  with  the  conviction  that  certain 
legislation  in  a  previous  session,  intended  to  enforce  prohibi- 
tion of  the  sale  of  liquor,  had  proved  injurious  to  the  country, 
and  was  altogether  in  advance  of  the  public  sentiment, 
suggested  to  his  ministers  the  expediency  of  an  immediate 
dissolution  of  parliament  in  order  to  elicit  a  decided  expres- 
sion of  public  opinion  upon  the  question.  Ministers  demurred 
to  this  position ;  but  the  governor  called  upon  them  either  to 
accept  responsibility  for  the  dissolution,  or  to  retire  from 
office.  They  chose  to  resign  ;  whereupon  a  new  administra- 
tion was  formed,  and  the  parliament  dissolved.  The  result 
of  the  appeal  to  the  country  wsis  to  vindicate  tlie  wisdom  of 
the  governor's  action  ;  for  the  new  parliament,  in  accordance 
with  the  o])inion  of  the  electorate,  promptly  repealed  the 
objectionable  Icf^islation.® 

In  the  province  of  Canada,  in  1858,  upon  thj  defeat  of  Mr. 
(afterwards  Sir)  John  A.  Macdonald's  ministry,  by  an  ad- 
verse vote  of  the  Legislative  Assembly  upon  the  question  of 
the  most  suitable  i)lace  for  the  future  seat  of  government, 
the  governor-general  (Sir  Edmund  Head)  commissioned  Mr. 

«»  Todd,  Pari.  Govt.  vol.  ii.  p.  407. 
•  See  ante,  p.  453. 


,  / 


)L0NIES. 

recognized 

Commons. 

resumed  to 

t  necessary 

lem.      ^^^U 
iion  permits 
the  doubt.*^ 
—  or,   in  a 


ereign 


—  to 


particular  m- 
■  shall  not  be 
o-  precedents 
lal  principles, 
•ive  by  a  con- 

1,  a  remarkable 
55,  wherein  the 
on  that  certain 
jnforce  prohibi- 
j  to  the  country, 
LbUc   sentiment, 
,f  an  immediate 
I  decided  expres- 
liisters  demurred 
them  either  to 
to  retire  from 
new  administra- 
jed.     The  result 
;e  the  wisdom  of 
lit,  in  accordance 
ly  repealed  the 

th3  defeat  of  Mr. 
istry,  by  an  ad- 
[\  the  question  ot 
.  of  government, 
loramissioned  Mr. 


DISCRETION  IN  THE  DISSOLUTION  OF  A  PARLIAMENT.      529 

George  Brown,   in   conjunction  with  Mr.  (now  Sir)  A.  A.  ranadiiin 

Dorion,  to  form  a  new  administration.     The  attempt  proved  f)'„'r)on 

unsuccessful,  for  reasons  which  will  appear  on  the  perusal  of  admini- 

the  following  correspondence  between  Mr.  Brown   and  the  ^^'■"^'""• 
governor-general,  which  is  taken  from  the  newspapers  of  the 
period :  — 

On   Thursday,  the   following  note  was   received   ])y  Mr. 

Brown :  — 

"  TouoNTO,  Thursday,  July  29,  1858. 

"  The  members  of  the  Executive  Council  have  tendered 
their  resignation  to  his  Excellency  the  governor-general,  and 
they  now  retain  their  several  oflBces  only  till  their  successors 
shall  be  appointed. 

"  Under  these  circumstances,  his  Excellency  feels  it  right 
to  have  recourse  to  you  as  the  most  prominent  member  of  the 
opposition,  and  he  hereby  offers  you  a  seat  in  the  Council  as 
the  leader  of  a  new  administration,  in  the  event  of  your  ac- 
cepting this  offer,  his  Excellency  recjuests  you  to  signify  such 
acceptance  to  him  in  writi:'g,  in  order  that  he  may  be  at  once  in 
a  podtion  to  confer  with  you  as  one  of  his  responsible  advisers. 

"  His  Excellency's  first  object  will  be  to  consult  you  as  to 
the  names  of  your  future  colleagues,  and  as  to  the  assignment 
of  the  ofEces  about  to  be  vacated,  to  the  men  most  capable  of 


It 


v*^  l.^-*^ 


filling  th  »Ti. 


Edmund  Head. 


(Signed) 
"George  Bnowx,  Esq.,  M.P.r." 

Immediately  on  the  receipt  of  this  document  Mr.  Brown 
waited  on  the  governor-general,  and  asked  time  to  consult 
his  friends. 

On  Friday  morning,  Mr.  Brown  waited  on  the  governor- 
general  by  appointment,  and  stated  that  he  was  engaged 
consulting  liis  friends,  but  would  next  morning  give  his  Ex- 
cellency a  final  answer. 

On  Saturday  morning,  Mr.  Brown  waited  on  his  Excel- 
lency with  the  following  acceptance  of  the  trust  proposed  to 
him :  — 

"  Mr.  Brown  has  the  honour  to  inform  his  Excellency  the 
governor-general  that  lie  accepts  the  duty  proposed  to  him 
in  his  Exeellency's  communication  of  2iHh  inst.,  and  under- 
takes the  formation  of  a  new  administration. 

"Cuuacii  Stueet,  July  31,  1858." 

31 


M 


\i 


'(!   i| 


I   I 


530     PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

Governor        On  Sunday  night,  at  ten  o'clock,  Mr.  Brown  was  waited  on 

Tf         1         '  1 1 

give  no '      ^y  *^^  governor-general's  secretary,  and  presented  witli  the 

plotlgc  to    following  memorandum  :  — 
dissolve. 

"  His  Excellency  the  governor-general  forwards  the  en- 
closed memorandum  to  Mr.  Brown  to-night,  because  it  may 
be  convenient  for  him  to  have  it  in  his  hand  in  good  time 
to-morrow  morning. 

*'  The  part  wliich  relates  to  a  dissolution  is  in  substance  a 
repetition  of  what  his  Excellency  said  yesterday  at  liis  inter- 
view with  Mr.  Brown. 

"  The  portion  having  reference  to  the  prorogation  or  ad- 
journment of  Parliament  is  important  in  determining  the 
propriety  of  the  course  to  be  pursued. 

**  His  Excellency  therefore  requests  Mr.  Brown  to  commu- 
nicate the  memorandum  to  his  future  colleagues,  in  order  to 
avoid  all  misapprehension  hereafter. 

"  GOVEUNMENT    HoUSE,    TOKONTO,  Aug.  1,  1858." 

Memorandum. 

"  His  Excellency  the  governor-general  wishes  Mr.  Brown 
to  consider  this  memorandum,  and  to  communicate  it  to  the 
gentlemen  whose  names  he  proposes  to  submit  to  his  Excel- 
lency as  members  of  the  new  government. 

"  The  governor-general  gives  no  pledge  or  promise^  express 
or  implied^  with  reference  to  diSHolving  parliament.  When 
advice  is  tendered  to  his  Excellency  on  this  subject,  he  will 
make  up  his  mind  according  to  the  circumstances  then  exist- 
ing, and  the  reasons  then  laid  before  him. 

"  The  governor-general  has  no  objection  to  prorogue  the 
parliament  without  the  members  of  the  new  administration 
tarking  their  seats  in  the  present  session.  But,  if  he  does  so, 
it  onofht,  his  Excellency  thinks,  to  be  on  an  express  under- 
standing tliat  parliament  shall  meet  again  as  soon  as  possible, 
say  in  November  or  December.  Until  the  new  ministers 
meet  parliament,  his  Excellenc}'  has  no  assurance  that  they 
possess  the  confidence  of  the  majority  of  the  house. 

"■  The  business  transacted  in  the  interval  ought,  in  his 
opinion,  to  be  confined  to  matters  necessary  for  the  ordinary 
administration  of  the  government  of  the  province. 

If  parliament  is  prorogued,  his  Excellwicy  would  think  it 


a 


NIES. 

waited  on 
l1  with  the 

Is  the   en- 
Luse  it  may 


od  time 


go 


substance  a 
at  his  inter- 

;ation  or  ad- 
irmining   the 

rn  to  commu- 
s,  in  order  to 


^cs  Mr.  Brown 

icate  it  to  the 

to  his  Excel- 

Iromise,  express 
lament.     When 
ftiih.iect,  he  wiU 
ces  tlien  exist- 

lo  prorogue  the 
I  administration 
It,  ii  he  does  so, 
1  express  under- 
Loon  as  possi\)le, 
le  new  ministers 
Irance  t\iat  they 

Ihouse. 

l\  oui^ht,  m  his 

jfor  tiic  ordinary 

py  would  think  it 


DISCRETION  IN  THE  DISSOLUTION  OF  A  PARLIAMENT.     531 

very  desirable  that  the  bill  for  the  registration  of  voters,  and 
that  containing  the  prohibition  of  frandulcnt  assignments  and 
gifts  by  traders,  should  be  proceeded  with  and  become  law, 
subject,  of  course,  to  such  modifications  as  the  wisdom  of 
either  house  may  suggest.  Besides  this,  any  item  of  supply 
absolutely  necessary  should  be  provided  for  by  a  vote  of 
credit,  and  the  money  for  repairs  of  the  canals,  which  cannot 
be  postponed,  should  be  \  oted. 

'*  His  Excellency  can  hardly  prorogue  until  these  necessary 
steps  are  taken.  If  parliament  merely  adjourns  until  after 
the  re-election  of  the  members  of  the  government,  the  case  is 
different,  and  the  responsibility  is  on  the  house  itself.  A 
prorogation  is  the  act  of  his  Excellency;  and,  in  this  particu- 
lar case,  such  act  would  be  performed  without  the  advice  of 
ministers  who  had  already  received  the  confidence  of  parlia- 
ment. His  Excfclleiiey's  own  opinion  would  be  in  favour  of 
proroguing,  if  the  conditions  above  specified  can  be  fulfilled, 
and  if  Mr.  Brown  and  his  colleagues  see  no  objection. 

(Signed)  Edmund  Head." 

"GovEKNMKNT  IIousE,  ToiioNTO,  July  31,  1858." 

Early  on  Monday  morning,  Mr.  Brown,  on  his  own  personal 
responsibility,  and  without  consulting  V  *■'  nroposed  colleagues, 
sent  the  following  note  to  the  governor-general :  — 

"  Mr.  Brown  has  the  honour  to  acknowledge  receipt  of  his 
Excellency  the  governor-general's  note  of  last  niglit,  with 
accompanying  memorandum. 

"  Before  receiving  his  Excellency's  note,  Jlr.  Brown  had 
successfully  fulfilled  the  duty  entrusted  to  him  by  the  gover- 
nor-general, and  will  be  prepared,  at  the  appointed  hour  this 
morning,  to  submit  for  his  Excellency's  a})proval  the  names 
of  the  gentlemen  whom  he  proposes  to  be  associated  with 
himself  in  the  new  government. 

"  Mr.  Brown  respectfully  submits  that,  until  they  have 
assumed  the  functions  of  constitutional  advisers  of  the  Crown, 
he  and  his  proposed  colleagues  will  not  be  in  a  j)<)sition  to 
discuss  the  important  measures  and  questions  of  public  policy 
referred  to  in  his  Excellency's  memorandum. 

"CuuucH  Stukkt,  Aug.  2." 

On  Monday  morning,  at  half-past  ten,  Mr.  Brown  waited 
on  his  Excellency,  and  submitted  for  his  approval  the  names 


r  i 


III 


.1 


1 

i 

■ 
■    ^ 

i'1 

111, 

k 

i 

PMI- 


^ttam 


532     PARLIAMENTAUY  GOVERNMENT  IN  THE  COLONIES. 

New  mini-  of  the  proposed  government.  At  noon,  on  the  same  day,  tlie 
quest^adis-  "^t.'mbers  of  the  government  took  the  oaths  of  office.  On 
solution.  Monday  night,  adverse  votes  were  given  against  the  admini- 
stration in  both  lionses.  On  TuescUiy,  Mr.  lirown  waited  on 
his  Excellency,  and  informed  him  that  the  cabinet  advised  a 
prorogation  of  parliament,  with  a  view  to  ;i  dissolntion.  The 
governor-general  requested  the  grounds  f)f  this  advice  to  be 
put  in  writing.  In  compliance  with  his  Excellency's  request, 
the  following  memorandum  was  communicated  to  the  gover- 
nor-general :  — 

"  His  Excellency's  present  advisers  having  accepted  office 
on  liis  Excellenovs  invitation,  after  the  late  atlministralion 
had,  by  their  resi  >  at^on,  admitted  their  inability  successfully 
to  conduct  the  afl  ')"  *^'>e  country  in  a  parliament  summoned 
under  tlieir  own  i.  'ice,  md  being  unanimously  of  opinion 
that  the  constitutional  rec:.'  .se  of  an  ap})eal  to  the  people 
affords  the  best,  if  not  the  only  solution  of  existing  difficulties, 
respectl'ully  advise  his  Excellency  to  prorogue  })arliament  im- 
mediately with  a  view  to  a  dissolution. 

"-  When  his  Excellency's  present  advisers  acoepted  office, 
they  did  not  conceal  from  themselves  the  probability  that  they 
would  be  unable  to  carry  on  tlie  government  with  the  present 
House  of  Assembly.  That  liouse,  they  l)elieve,  does  not  pos- 
sess the  confidence  of  the  country ;  and  the  public  dissa- 
tisfaction has  been  greatly  increased  by  the  numerous  and 
glaring  acts  of  corruption  and  fraud  by  which  many  seats 
were  obtained  at  the  last  general  election,  and  for  which  acts 
the  house,  though  earnestly  petitioned  so  to  do,  has  failed  to 
affoicl  a  remedy. 

''  For  some  years  past,  strong  sectional  feelings  have  arisen 
in  the  country,  which,  especially  during  the  present  session, 
have  serionsly  impeded  the  carrying  on  of  the  admiuistiative 
and  legislative  functions  of  the  government.  The  late  admi- 
nistration made  no  attempt  to  meet  these  difiiculties  or  to 
suggest  a  remedy  for  them,  and  thereby  the  evil  has  been 
greatly  aggravated.  His  Excellency's  present  advisers  have 
entered  the  government  with  the  fixed  determination  to  pro- 
pose constitutional  measures  for  the  establishuKnit  of  that 
harmony  between  Upper  and  I^ower  Canada  which  is  essen- 
tial to  the  prosperity  of  the  province.  They  respectfully  sub- 
mit that  they  iiave  a  right  to  claim  all  the  support  which  his 


,ONIKS. 

me  clay,  the 
office.     Ou 
the  lulniiui- 
ni  waited  on 
let  advised  a 
lutiou.     The 
advice  to  \)e 
icy's  ve(iuest, 
to  tlie  govei- 

.ccepted  office 
administration 
ty  successfully 
lent  sunnnoned 
isly  of  opinion 

to  the  people 
ting  difficulties, 

pa'ilianient  im- 

accepted  office, 
ability  that  they 
with  the  present 

e,does  not  pos- 
lie  public  dissa- 
munerous  and 

lich  many  seats 
.a  for  which  acts 
,do,  has  failed  to 

llings  have  arisen 
1  present  session, 
lie  adnnuistralive 
The  late  admi- 
ditlicuUics  or  to 
llie  evil  has  been 
Mit  advisers  have 
fvminalion  to  pro- 
plishmont  of  that 
[la  which  is  essen- 
(v  r(>spectf\dly  sub- 
[support  which  his 


Ilc.'ul's 
roasoiia 
for  rel'uu- 


DISCRETION  IN  THE  DISSOLUTION  OF  A  PARLIAMENT.      533 

Excellency  can  constitutionally  extend  to  them  in  the  prose- 
cution of  this  all-important  object. 

"The  unprecedented  and  unparliamentary  course  pursued 
by  the  House  of  Assembly,  which  innnediaiely  after  having, 
by  their  vote,  compelled  the  late  ministry  to  retire,  proceeded 
to  pass  a  vote  of  want  of  confidence  in  the  present  adminis- 
tration, without  notice,  within  a  few  hours  of  their  appoint- 
ment, in  their  absence  fiom  the  lu)use,  and  before  their  policy 
liad  been  aniu)unced,  affords  the  most  convincing  pre)of  that 
the  affairs  of  the  country  cannot  be  etiiciently  conducted 
under  the  control  of  the  house  as  now  constituted." 

At  two  o'clock  this  day,  the  following  memorandum  was 
received  from  the  governor-general :  — 

"  His  Excellency  the   governor-general  has  received  the  fiovomor 
advice  of  the  Executive  Council  to  the  efTect  that  a  dissolu 
tion  of  parliament  should  take  place. 

"  His  Excellency  is  no  doubt  bound  to  deal  fairly  ',  Ul   dl   "'*? 
political  parlies;  but  he  has  also  a  duty  to  perft)rj     to  tjio 
queen  and  the  peojjle  of  Canada  paramount  to  that  which  he 
owes  to  any  one  party,  or  to  all  parties  whatsoever. 

''  The  question  for  his  Excellency  to  decide  is  no^  — '  what 
is  advantageous  or  fair  for  a  particular  party  ? '  but  !iat  upon 
the  whole  is  the  most  advantageous  and  fair  for  the  people 
of  the  province. 

"  The  resignation  of  the  late  government  was  tendered  in 
consequence  of  a  vote  of  the  house,  which  did  not  assert 
directly  any  want  of  confidence  in  them. 

"  The  vote  of  Monday  night  was  a  direct  vote  of  want  of 
confidence  on  the  part  of  both  houses.  It  was  carried  in  the 
Assend)ly  by  a  majority  of  forty  in  a  house  of  a  hundred  and 
two,  out  of  one  hundred  and  thirty  members,  consecjuently 
by  a  majority  of  the  whole  house,  even  if  every  seat  had  been 
full  at  the  time  of  the  vote. 

"  In  addition  to  this,  a  similar  vote  was  carried  in  tlie 
upper  house  by  sixteen  against  eight,  and  an  address  founded 
on  the  same  was  adopted. 

"It  is  clear  that  under  such  circumstances  a  dissolution, 
to  be  of  any  avail,  must  be  immediate.  His  Excellency  the 
governor-general  cannot  do  any  act  other  than  that  of  dis- 
solving parliament  by  the  advice  of  a  ministry  who  possess 
the  confidence  of  neither  branch  of  the  legislature. 


I 


'1 


\ 


II 


i      V 


'' 

t         i' 

-I 

i 

J 

'   ; 

!: 


.7    '    i 


:l'l 


r  h 


; 


634     PARLIAMENTARY   GOVERNMENT  IN  THE  COLONIES. 

"  It  is  then  the  dut}'  of  his  Excellency  to  dissolve  parlia- 
ment. 

"It  is  not  the  duty  of  the  governor-general  to  decide 
whether  the  action  of  the  two  houses  on  Monday  night  was, 
or  was  not  in  accordance  with  the  usual  courtesy  of  parlia- 
nn;nt  towards  an  incoming  administration.  The  two  houses 
are  the  judges  of  the  propriety  of  their  own  proceedings. 
His  Excellency  has  to  do  with  the  conclusions  at  which  they 
arrive,  provided  only  that  the  forms  observed  are  such  as 
to  give  legal  and  constitutional  force  to  their  votes. 

"  There  are  many  points  which  require  careful  conside- 
ration with  reference  to  a  dissolution  at  the  present  time. 
Amongst  these  are  the  following:  — 

"  I.  It  has  been  alleged  that  the  present  house  may  be 
assumed  not  to  represent  the  people ;  if  such  were  the  ease, 
there  was  no  sufficient  reason  why,  on  being  in  a  minority  in 
that  house,  the  late  government  should  have  given  place  to 
the  present.  His  Excellency  cannot  constitutionally  adopt 
this  view. 

'•  11.  An  election  took  place  only  last  winter.  This  fact 
is  not  conclusive  against  a  second  election  now^,  but  the  cost 
and  inconvenience  of  such  a  proceeding  are  so  great  that 
they  ought  not  to  be  incurred  a  second  time  without  very 
strong  grounds. 

"•  III.  The  business  before  parliament  is  not  yet  finished. 
It  is  perhaps  true  that  very  little  which  is  absolutely  essential 
for  the  country  remains  to  be  done.  A  portion,  however,  of 
the  estimates  and  two  bills,  at  least,  of  great  importance  are 
still  before  the  Legislative  Assembly,  irrespective  of  the  pri- 
vate business. 

"  In  addition  to  this,  the  resolutions  respecting  the  Hud- 
son's Bay  Territory  have  not  been  considered,  and  no  answer 
on  that  subject  can  be  given  to  the  British  Government. 

"  IV.  The  time  of  year  and  the  state  of  affairs  would  make 
a  general  election  at  this  moment  peculiarly  inconvenient  and 
burthensome,  inasmuch  as  the  harvest  is  now  going  on  in  a 
large  portion  of  the  country,  and  the  pressure  of  the  late 
money  crisis  has  not  passed  away. 

"  V.  The  following  considerations  are  strongly  pressed  by 
his  Excellency's  present  advisers  as  reasons  why  he  should 
authorize  an  appeal  to  the  people,  and  thereby  retain  their 
services  in  the  Council :  — 


aES. 


ve  1 


larlia* 


to  decide 
light  was, 
of  parlia- 
ivo  houses 
oceedings. 
vhich  they 
re  such  as 

al  conside- 
aseiit  time. 

ise  may  be 
ire  the  case, 
minority  iu 
en  place  to 
)ually  adopt 

..    This  fact 

but  the  cost 

o  great  that 

yithout  very 

yet  finished, 
tely  essential 
however,  of 
iportance  are 
;e  of  the  pvi- 

ting  the  Hud- 
Lnd  no  answer 
lernment. 
i-s  would  make 
Convenient  and 
going  on  in  a 
re  of  the  late 

gly  pressed  hy 
\v\\y  he  should 
retain  their 


DISCRETION  IN  THE  DISSOLUTION  OF  A  PARLIAMENT.      535 

"1.  The  corruption  and  bribery  alleged  to  have  been  prac- 
tised at  the  last  election,  and  the  taint  which  on  that  account 
is  said  to  attach  to  the  present  Legislative  Assembly. 

"  2.  Tlie  existence  of  a  bitter  sectional  feeling  between 
Upper  and  Lower  Canada,  and  the  ultimate  danger  to  the 
Union,  as  at  present  constituted,  which  is  likely  to  arise  from 
such  feeling. 

"  If  the  first  of  these  points  be  assumed  as  true,  it  must 
be  asked  what  assurance  can  his  Excellency  have  that  a  new 
election,  under  precisely  the  same  laws,  held  within  six  or 
eight  months  of  the  last,  will  differ  in  its  character  from  that 
which  then  took  place  ? 

"  If  the  facts  are  as  they  ar3  stated  to  be,  they  might  be 
urged  as  a  reason  why  a  general  election  should  be  avoided 
as  long  as  possible  ;  at  any  rate,  until  the  laws  are  made  more 
stringent,  and  the  precautions  against  such  evils  shall  have 
been  increased  by  the  wisdom  of  parliament.  Until  this  is 
done,  the  speedy  recurrence  of  the  opportunity  of  practising 
such  abuses  would  be  likely  to  aggravate  their  character  and 
confirm  the  habit  of  resorting  to  them. 

"  The  second  consideration,  as  to  the  feeling  between 
Upper  and  Lower  Canada,  and  the  ultimate  danger  of  such 
feelings  to  the  Union,  is  one  of  a  very  grave  kind.  It  would 
furnish  to  his  Excellency  the  strongest  possible  motive  for  a 
dissolution  of  parliament,  and  for  the  retention  of  the  present 
government  at  all  hazards,  if  two  points  were  only  conclu- 
sively established  ;  tliat  is  to  say,  if  it  could  be  sliown  that 
the  measures  likely  to  be  adopted  by  Mr.  Brown  and  his  col- 
leagues were  a  specific,  and  tlie  only  specific,  for  these  evils, 
and  that  the  members  of  the  present  Council  were  the  only 
men  in  the  country  likely  to  calm  tlie  passions,  and  allay  the 
jealousies,  so  unhappily  existing.  It  may  be  that  both  these 
propositions  are  true,  but,  unless  they  are  established  to  his 
Excellency's  complete  satisfaction,  the  mere  existence  of  the 
mischief  is  not  in  itself  decisive  as  to  the  propriety  of  resort- 
ing to  a  general  election  at  the  present  moment.  The  cer- 
tainty, or,  at  any  rate,  the  great  probability,  of  the  cure  by 
the  course  proposed,  and  by  that  alone,  would  require  to  be 
also  proved.  Without  this,  a  great  present  evil  would  be 
voluntarily  incurred  for  the  chance  of  a  remote  good. 

"  VI.  It  would  seem  to  be  the  duty  of  his  Excellency  to 


•:rl 


i 

■  ■  ) 


\  (I 


'!' 


ii 


i' 


l( 


63G       TAULIAMKNTARY  GOVERNMENT   IN  THE   COLONIES. 

exhaust  every  possible  alternative  Ix'fore  suhjofting  the  pro- 
vince for  the  second  time  in  the  same  year  to  the  cost,  tlie 
inconvenience,  and  the  demoralization  of  such  a  proceedinj^. 

"The  governor-f^eneral  is  by  no  means  satisfied  that  every 
alternative  has  been  thus  exhausted,  or  that  it  would  be  im- 
possible for  him  to  secure  a  ministry  who  would  close  the 
business  of  this  session,  and  carry  <>n  the  adniinistratiijn  of 
tiie  government  during  tlu;  recess  with  the  confidence  of  a 
majority  of  the  Legislative  Assend)ly. 

"After  full  and  mature  deliberation  on  tlic  arguments  sub- 
mitted to  him  by  word  of  mouth,  and  in  writing,  and  with 
every  respect  for  the  opinion  of  the  Council,  his  Excellency 
declines  to  dissolve  parliament  at  the  present  time. 

(Signed)  "  Edmund  Head. 

"Government  House,  Touonto,  C.  W.,  Axig.  4,  1858." 

New  ml-  Immediately  on  the  receipt  of  this  document,  Mr.  Brown 

s/uii^^  ^*^     proceeded  to  the  government  house  and  placed  in  the  hands 
of  his  Excellency  the  resignations  of  himself  and  colleagues. 

"JNIr.  Brown  has  the  honour  to  inform  his  Excellency  the 
governor-general  that,  in  consecpience  of  his  Excellency's 
memorandum  of  this  afternoon,  declining  the  advice  of  the 
Council  to  prorogue  parliament  with  a  view  to  a  dissolution, 
he  has  now  on  behalf  of  himself  and  colleagues  to  tender  their 
resignations. 
"ExECLTivE  Council  CiiAMnER,  Toiionto,  Aug.  4,  1858." 


Previous 
?uinislry 
rein- 
stated. 


The  previous  administration  was  accordingly  recalled.  In 
onler  to  avoid  the  necessity  for  their  formal  re-election  — 
when  in  fact  they  plausibly  assumed  that  they  had  been  actu- 
ally reinstated  in  office  owing  to  the  failure  of  negotiations 
with  their  political  opponents  —  the  new  ministers  availed 
themselves  of  certain  statutory  provisions  by  which  they  were 
enabled  to  resume  their  places  without  vacating  their  seats. 
The  nominal  premier  was  changed,  and  certain  minor  altera- 
tions in  the  personnel  of  the  administration  took  ])lace ;  but 
substantially  it  was  a  return  to  power  of  the  Macdonald 
ministry,  and  they  succeeded  in  maintaining  the  policy  in 
regard  to  the  seat  of  government  wdiich  had  led  to  their  tem- 
porary loss  of  office.  Attempts  were  made  to  question  their 
proceedings  in  resuming  their  places  without  going  for  re-elec- 


COLONIES. 

ting  the  pvo- 

tho  cost,  the 

proceeding. 

U!(l  that  every 

^V()uUl  he  im- 

,ul(l  (!h)se  the 

linistnvtiim  of 

Diiiitlcuce  ot  a 

irgnnicnts  suh- 

ilin;^^  and  with 

his  Excellency 

lime. 

lUND  Hkad. 


ent,  Mr.  Brown 
jed  in  the  hands 
vnd  colleagues, 
i  Excellency  the 
lis  Excellency's 
10  advice  of  the 
to  a  dissolution, 
ts  to  tender  their 

m." 

Uy  recalled.     In 
hal  re-election  — 
y  had  heen  actu- 
}  of  negotiations 
[linisters   availed 
which  they  were 
lating  their  seats, 
lain  minor  alteva- 
took  1)1  ace  ;  but 
the  ?dacdonald 
[ng  the  policy  in 
led  to  their  tem- 
to  question  their 
going  for  re-elec- 


DISCRETION  IN  THE  DISSOLUTION  OF  A  PAHLIAMENT.      537 

tion  ;  hut  ministers  were  sustained,  not  only  hy  the  Logisla- 
tivo  Asscnihly,  hut  also  by  jndgnicnts  ujion  the  case  in  the 
courts  of  hiw.' 

In  l^^(')0,  the  lieutenant-Ljovernor   of    Nova  Scotia    (Lord  Ciovomnr 
Mulgrave)    was  phunul   in   a  jjosition  somewhat  resenii)Hng   h,'\If,v'iV*' 
tliat  of  Sir  Ethnnnd  Head  in  the   [)receding  ease.     Afler  a   Scotia,  ru- 
dissolution  of  parliament  in  the  previous  year,  his  ministers,   ,i'i',"^j^iiJ. 
who  liad  lieretofore  a  good   working  majority,  fonnd  tliem-  ti""- 
selves  considerably  weakened,  the  opposition  being  almost  ai)l(; 
to  turn  the  scale  against  them.     Ministers  declared,  however, 
that  several  of  tlieir  opponents   were  dis(iualilied   ai.d  that 
their  seats  sliould  l>e  vacated.    They  endeavoured  to  i)ersuade 
the  House  to  unseat  these  gentlemen  without  a  resort  to  tiie 
legal    method  of   trying    controverted   elections,      lint    the 
attempt  was  unsuccessful.     Instead,  the   House  resolved  that 
they  liad  no  confidence  in  the  atlministration. 

Whereupon  ministers  strongly  urged  upon  the  governor  the 
necessity  for  another  dissolution  of  parliament,  not  only  on 
their  own  behalf,  but  also  on  public  grounds.  His  Excellency 
carcfidly  reviewed  their  argtnnents,  dissented  from  their  con- 
clusions, and  declined  to  accede  to  their  recpiest.  Hi  j)romised 
that,  wlienever  lie  should  be  of  opinion  "  tiiat  a  constitutional 
necessity  for  a  dissolution  exists,"  he  w^onld  not  hesitate  to 
appeal  to  the  country ;  but  he  added,  "so  long  as  I  remain 
her  Majesty's  representative  in  Nova  Scotia,  I  shall  claim  to 
be  the  jmlge  of  when  that  time  has  arrived."  As  it  was,  he 
deemed  it  to  be  neither  expedient  nor  for  the  public  conve- 
nience that  a  dissolution  should  take  place  so  soon  after  a 
general  election.     Accordingly  the  ministry  resigned. 

In  defending  his  conduct  upon  this  occasion  to  tlie  secre-  Ministry 
tary  of  state  for  the  colonies,  the  governor  said:  —  "I  (piite  '■^''*''^"- 
admit  that  when  a  Council  is  backed  by  a  majority  of  the 
House,  a  governor  is  bound  in  ordinary  cases  to  follow  their 
advice,  and  that  it  is  chiefly  by  his  inilnence  and  persuasion 
that  he  must  endeavour  to  direct  their  conduct,  but  Mr. 
Johnston  (the  j''  emier)  would  place  a  governor  in  the  same 
position  as  the  qn-en,  and  the  Council  in  the  position  of  the 
cabinet  at  home,  forgetting  entirel}-  that  the  governor  is  him- 


*  Le^.  Assom.  Journals,  1858,  pp.  973-976, 1001 ;  Upper  Caniula  Q.  R. 
Reports,  vol.  xvii.  p.  310;  Upper  Canada  C.  T.  Keports,  vol.  viii.  p.  471). 


\ 


{  <  4 

i  f     V. 
ill  r; 


M  i; j 


i 


.1 


538       PARLI  \MENTAIIY  GOVERNMENT  IN  THE  COLONIES. 


1 


New  mi- 
nistry ap- 
puintcd. 


Oo%'ornor 

o)'  Sdiitli 

Kr,"     <  a 

tlis^.iiii- 

tioii,  uiiiUr 

purlin- 

iiu'liliiry 

protest. 


self  responisible  to  the  home  government,  and  that  it  is  no 
excuse  for  him  to  siiy  in  answer  to  any  charge  against  his 
administration  of  aftairs,  I  did  so  by  the  advice  of  my  Coun- 
cil." Ministers  having  advised  a  dissolution  after  r  vote  of 
want  of  confidence  liad  passed,  "  their  advice  had  ceased  to 
carry  that  weight  which  under  other  circumstances  would 
attach  to  it ; "  and,  "  in  the  event  of  the  pe()i)le  deciding 
against  them,"  the  governor  would  "  have  been  left  to  answer 
for  having  refused  to  acknowledge  the  vote  of  the  majority 
in  a  house  which  had  only  just  been  elected  by  the  people,  an 
act  wliich  I  consider  would  have  been  most  unconstitutional." 

In  charging  the  leader  of  the  opposition  with  the  task  of 
forming  a  new  ministry,  the  governor  recjuired  of  him  a  wiit- 
ten  pleilge  that  he  would  facilitate  a  legal  inquiry  into  the 
right  to  the  contested  seats,  and  that  parliament  should  not 
be  prorogued  'mtil  that  (question  was  decided.  This  pledge 
was  given,  and  faithfully  kept.  The  result  of  the  incjuiry  into 
the  legality  of  dis})uted  elections  proved  somewhat  surprising. 
The  alleged  disqualification,  which  had  been  so  vehemently 
asserted  by  the  ex-ministers,  was  not  substantiated  ;  and  the 
members  declared  by  their  opponents  to  be  distjualined  were 
pronounced  by  the  proper  tribunal  to  have  been  duly  elected. 
Nevertheless,  the  ex-ministers  persevered  in  a  'Mupts  to  ob- 
tain [■  dissolution  of  parliament;  but  the  governor  would  not 
yield.  The  hou.se  sustained  the  new  ministry  on  a  t'st  vote, 
by  a  majority  of  four.  And  the  colonial  secretary,  upon  re- 
ceiving the  report  of  the  govornor's  proceedings,  expressed 
entire  aj)i)roval  of  his  Excellt  ney's  conduct.* 

In  1871,  the  governor  of  South  Australia  (Sir  James  Fer- 
gusson)  agreed  to  allow  a  dissolution  to  his  ministers,  —  after 
their  defeat,  on  Nov.  10,  —  on  a  vote  of  want  of  confidence, 
which  was  carried  against  them  in  the  Assembly,  by  the 
casting  vote  of  the  speaker.  Whereupon,  both  hou.ses  of 
parliament  passed  addiv;sses,  i)raying  the  governor  to  dismiss 
his  ministers  at  once,  and  not  to  grant  them  a  dissolution. 
In  rej)ly  to  these  addresses,  tlie  governor  informed  the  Legis- 
lative Council  that  he  regretted  his  inability  to  comply  with 
their  re(]iiest;   and   he   informed  the  Assembly  that,  under 


«  Nova  Scotia  Assein.  Jouiiiiils,  1860,  appx.  pp.  11  -J(5;  ibitl.  1861. 
upl>x.  uo.  -'. 


OLONIES. 

.  that  it  is  no 
re  against  Uis 
'  of  my  Coun- 
vftcr  i:  vote  of 
had  ceased  to 
stances  would 
jople  deciding 
I  left  to  answer 
f  the  majority 
■  the  people,  an 
constitutional." 
ith  tlie  task  of 
[  of  him  a  writ- 
uquiry  into  the 
lont  should  not 
d.    This  pledge 
the  inijuiry  into 
.what  surprising. 
^  so  vehcniently 
ntiated ;  and  the 
dis(iualitied  were 
,een  duly  elected. 
I  rt    .'mpts  to  ob- 
jvernor  would  not 
Lyon  a  1-st  vote, 
Icretary,  upon  re- 
judings,  expressed 

(Sir  James  Fer- 
.ministers,  — ufter 
ant  of  coniidence. 
Assembly,  hy  the 
L,  both  houses  of 
Ivernor  to  disnuss 
liem  a  dissolution. 
Lformed  the  Lcgis- 
ity  to  comply  with 
lembly  that,  under 

L.p.  n-J0;i?W,'/.1861. 


DISCRETION  IN  THE  DISSOLUTION  OF  A  PARLIAMENT.     539 

existing  circumstances,  he  did  not  feel  justified  in  refusing  to 
his  advisers  the  appeal  wliich  tliey  desired  to  malve  to  the 
constituencies  from  the  vote  of  the  house.  On  the  same  day, 
the  governoi-  proceeded  to  prorogue  parliament,  with  a  view 
to  its  immediate  dissolution. •* 

In  May,  1872,  the  Legislative  Assemblv  of  Victoria  having  Oovomor 
agreed  to  a  vote  expressing  a  want  of  confidence  in  the  ad-  ),ury,  <.f 
ministration  of   Mr.  (afterwards   Su-)  C.  Gavan  Dutl'vi  the   Victom. 
cabinet    presented    to   the   governor   (Lord   Canterbury)   a  .iissoiu- 
minute,  expressing  their  conviction  tliat  they  were  Inmnd  to  ^'""• 
give  effect  to  this  vote,  oitlier  by  an  immediate  resignation  of 
office  or  by  recommending  a  speedy  dissolution  of  parlia- 
ment. 

They  believed  that  a  dissolution  of  j)arliam(;nt,  as  an  alter- 
native to  resignation  of  oHice,  was  justifiable  under  any  one  of 
the  following  circumstances  :  — 

"  1.  When  a  vote  of  '  no  confidence  '  is  carried  against  a 
governnuMit  which  has  not  already  ap[)ealed  to  the  country. 

"  2.  When  there  are  reasonable  grounds  to  believe  that  an 
adverse  vt)te  against  the  government  does  not  represent  the 
opinions  and  wishes  of  the  countiy,  and  would  be  reversed  by 
a  new  parliament. 

'*  3.  When  the  existing  parliament  was  elected  under  the 
auspices  of  the  opponents  of  the  government. 

*'4.  When  the  maioritv  against  a  <;overnnu'nt  is  so  small  as 
to  make  it  improbable  that  a  strong  government  can  be  formed 
from  the  opi)osition." 

All  these  conditions  they  believed  to  be  united  in  their  own 
case.  The  [)resent  ministry  was  iij)pointed  a  year  ago,  after  a 
general  election  ;  and  the  constituencies  had  liad  no  opi)ortu- 
nity  of  pronouncing  upon  their  puhlie  policy. 

This  memorandum,  otherwise  very  able,  contained  one 
grave  error.  It  alleged  that,  "  in  England,  it  may  be  said  to 
have  become  a  maxim  of  constitutional  law  that  the  alterna- 
tive of  resignation  or  dissolution  is  left  ai)S{^lutely  to  the  dis- 
cretion antl  responsibility  of  ministers."  And  it  inferred, 
from  this  erroneous  assumption,  that  a  similar  ruU'  should  be 


I. 

h 


% 


'*  S<tutli  Australia  Lot,'.  Coiiu.  Jouniiils,  1871,  p.  (5.>,  Ilmist;  of  A^scm. 
.louniuls,  1871,  itp,  'J;t.j,  'j;]7. 


\f 


li 


■^^  J.VI.'  *»»»«"«i**i(«"Biw 


mi^msiaigSSi 


540     PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


«    ! 


recognized,  eqiiully  without  quiilification,  as  a[>pliciii)le  to  the 
colonies.' 

In  reply,  tiie  governor  pointed  out  that,  inasmuch  as  of 
late  years,  it  had  not  been  customary  for  the  sovereign  to  re- 
fuse a  dissolution  asked  lor  by  her  ministers,  as  an  alternative 
to  a  resignation  of  oHice,  —  a  circumstance  from  whicli,  how- 
ever, a  very  questionable  inference  was  drawn  in  res])ect  to 
the  constitutional  law  of  the  mother  country, — it  was  not 
therefore  to  be  assumed  that  a  governor  had  no  discretion  in 
sucli  matters.  Colonial  governors,  though  not  constitution- 
ally r(!Sponsible  to  colonial  legislatures,  are  personally  respon- 
sible to  the  Crown.  Tliis  responsibility  involves  practically, 
though  indirectly,  serious  lociil  re,~i)onsibilities,  —  esi)ecially  in 
regard  to  dissolutions,  —  of  which  no  governor  can  divest 
himself. 

Adverting  to  the  ''four  conditions"  above  s[)cciried,  —  in 
any  one  of  which,  Mr.  Duffy  believed,  recourse  might 
properly  be  had  to  a  dissolution,  —  the  governor  declined 
to  admit  that  any  or  all  of  these  considerations  "would, 
nn<l(;r  all  conceivible  circumstances,  and  without  any  refer- 
ence whatever  to  any  other  f;ict  or  facts,  however  inq)ortant, 
justify  a  dissolution."' 

Admitting  the  propi'iety  of  the  recommendation  to  dissolve 
as  coming  from  his  advisers,  the  governor  himself,  in  the  exer- 
cise of  his  constitutional  discretioii,  thought  it  premature  at 
the  time  to  act  upon  that  advice. 

The  vote  of  censure  which  had  led  to  tlu*  jirescnt  crisis 
was  principally  directed  against  acts  of  administration  and 
not  of  legislation.  The  governor  was  not  satisfied  that  the 
majority  in  the  Assem'-ly  would  not  have  aj)proved  of  the 
pr(»ji()sed  legislative  measures  of  ministers.  II'  not,  with 
parties  so  eveidy  l)alaneed  in  the  Assembly,  a  new  adminis- 
tration might  probably  be  formed  which  would  obtain  suHi- 
cient  support  from  the  existing  chamber  to  enable  them  to 
carry  on  the  public  business. 

The  adoption  of  a  nou-conlidence  vote  by  the  Assembly  liad 
undoubtedly  rendered  it  impossible  for  the  ))resent  ministry 
to  renniin  in  ofliei'  unless  the  Assembly  should  be  dissolved, 


'  CoininonH    rii]")-*.   1873.    no.  .TtH.  n    7  (vol.  1.   p.  3b")).     Sec  also 
Victoria  A.sst'jul»l^-  \uWs  iiiid  I'luccfii.  1&72,  no.  45. 


COLONIES. 
,plicai)le  to  the 

nasmuch  as  of 
DVOie'iLju  to  re- 
s  im  iiitevnative 
,in  which,  how- 
n  ill  respect  to 
y^  —  it  was  not 
lo  discretion  in 
lot  constitution- 
■rsonally  rcspm- 
,lves  i>ractically, 
^,_  especially  in 
ivnor   can  divest 

c  specified,  —  in 
recourse  might 
nvernor  declined 
orations  ''  would, 
•ithout  any  rcfcT- 
wever  important, 

dalion  to  dissolve 
imself,  in  theexer- 
,1  It  premature  at 

ihc  present  crisis 
Ibniuistration  and 
saii>iicd  that  the 
|('  approved  of  the 
If    not,   with 
.V,  a  new  adminis- 
[vould  obtain  sulli- 
Ito  enable  them  to 

the  Assembly  had 
L  ])rese»it  ministry 
'ould  be  dissolved, 

1.  p.  315).    Sec  also 


DISCRETION  IN  THE  DISSOLUTION  OF  A  PARLIAMENT.      541 

but  the  governor  deemed  it  to  be  his  duty,  under  existing 
circumstances,  to  put  himseU"  into  communication  with  tho 
party  by  which  this  vote  liad  been  carried,  and  endeavour  to 
form  a  ministry  without  being  obliged  to  resort  to  that  which 
he  considered  would  be  essentially,  it'  not  exclusively,  a  penal 
dissolution. 

Whereupon  the  Duffy  administration  resigned.  They  did 
not  feel  warranted  in  debating  any  of  the  gnunids  upon  which 
liis  Kxeellency  had  arrived  at  his  decision,  but  j)rotested 
against  being  understood  as  implying  their  acijuicscence  in 
those  reasons. 

The  governor  then  sent  for  Mr.  Fraiicis,  who  succeeded  in 
forming  a  new  administration  to  which  the  confidence  of  par- 
liament was  given,  without  the  necessity  for  having  recourse 
to  a  dissolution. J 

In  reviewing  this  diflTioult  ease,  it  is  evident  in  the 
first  place,  that  Lord  Canterbury  was  riglit  wlien  lie 
vindicated  for  himself  a  "  constitutional  discretion"  to 


dec  id 


e  as 


to  til 


)edi 


oti 


le  expediency  or  otherwise,  upon  grounds 


iiuh 


Reasons 
for  ap 
])roviiiLj  of 
Lord  Ciiii- 
tcrltiin's 
decision. 


of  public  policy,  whether  or  not  to  grant  an  appeal  to 
the  country  to  this  defeated  administration. 

No  doubt  the  governor's  refusal  of  this  appeal  was  a 
great  hardship  to  the  Duffy  ministry,  f(u-  they  had  good 
reason  to  anticipate  a  favourable  response  had  they 
been  allowed  a  dissolution. 

It  has  been  often  urged  that  a  ministry  is  entitled  to 
claim  IVom  the  Crown  tiie  dissolution  of  a  ])iiiliaimHit 
which  had  been  elected  under  the  auspices  of  their 
political  opponents,  and  that  this  claim  may  be  pre- 
ferred whenever  the  popuhir  branch  thinks  (it  to  with- 
hold its  c(»nfidence  from  an  administration.  IJiit  neither 
constitutional  usage  nor  u  just  appreciation  of  tin!  mo- 
narchial  office,  will  warrant  any  such  limitation  of  the 
discretion  of  the  Crown  in  the  exercise  of  this  j)reroga- 
tive.      For  it  is  not  a  legitimate  use  of  the  i)rerogative 


•         U! 


ml 


i  Victoria  Assciulily,  Votes  and  Proceed.  1872.  no.  I.'i.    And  .see  Vic- 
toria Year  bouk,  ji.  1. 


I!i 


(  f 


|: 

1 

1  ! 

1 

1     1 

! 

'  r 

Now  Zea- 
land mi- 
nistry ask 
for  a  (11 8- 
eulutiun. 


542       PAHLIAMENTARY  GOVERXMENT  IN  THE  COLONIES. 

of  dissolution  to  resort  to  it  when  there  is  no  iirforirtrt 
political  quf'^ticn  upon  which  contending  part!  i  av^ 
dire*'  Uy  at  is?  i  e,  iMid  merely  in  order  to  maiiit.i...<  in 
p^iwcr  the  particular  ministers  who  are  in  ofhc^i  at  tiie 
time." 

It  has  heen  alleged  that  eminent  constitutional  au- 
thorities in  England  expressed  their  opinion  that  Lord 
Canterbury  acted  on  this  occasion  too  arbitrarily  in 
refusing  to  grant  a  dissolution  to  the  Duffy  administra- 
tion.' But,  on  the  other  hand,  it  would  appear  that  the 
governor's  decision  was  justified  by  the  result,  inas- 
much as  the  ministry  which  succeeded  to  office  had  no 
difficulty  in  securing  the  confidence  of  the  existing 
Assembly.  And  upon  the  retirement  of  Lord  Canterbury 
from  the  government  of  Victoria  in  the  following  year, 
when  his  term  of  service  expired,  he  received  cordial 
addresses  of  respect  and  consideration  for  his  public 
conduct  from  both  houses  of  the  colonial  parliament. 

In  New  Zealand,  on  Oct.  5,  1872,  tlie  Stafford  administro- 
tion  was  defeated  in  the  House  of  Representatives  u))ori  a 
motion  by  Mr.  (now  Sir)  Julius  Voj^^el  of  want  of  confidence, 
which  was  passed  l)y  a  majority  of  two.  This  ministry  had 
been  in  existence  but  four  weeks,  their  predecessors  i)avin<'f 
resij»ned  upon  a  similar  defeat  by  an  adverse  inajority  of 
three.  Tiiese  facts  seemed  to  show  that  no  party  in  tlie 
present  house  was  s'jong  enour;!  'n  command  a  reliable 
workincf  majority." 

Mr.  Stafford  accordincfly  advised  the  governor  (Sir  George 
Bowen)  to  grant  a  dissolution  of  jjarliament,  the  existing 
house  having  been  elected  during  the  time  of  the  preceding 
ftdministration,  which  at  first  had  a  large  majority,  but  wliich 
had  gradually  dwindled  away.  From  t!ie  best  information  at 
his  connnand,  Mr.  Stafford  was  satisfied  that  the  result  of  a 
dissolution  would  be  the  return  of  a  decisive  majority  in 
favour  of  his  policy. 


•«  Sep  Todd.  rarl.  Ciovt.  vol.  ii.  p.  400. 
'  rriviitu  L<'tlor  fioin  Victoria. 


)LONIKS. 

)  in'}  oi" Lillet 
pari'  ^  J^y'^ 

oflitc  at  the 

itutional  au- 
3n  tluit  Lord 
jbitrarily  in 
^r  administra- 
peur  that  the 

result,  inas- 
office  had  no 

the  existing 
rd  Canterbury 
bUowiu^r  year, 
jceived  cordial 
for  his  public 

parliament. 

fforil  administi-n" 
iutatives  upoii  a 
tut  of  coiiiidence, 
his  luinisuy  had 
Llceessovs  hiivin'?^ 
erse  lUiijority   <►!* 
-  no  pivvty  iu  ti»o 
^iuau«l    a   reliable 

Lrnor  (Sir  George 

eut,  the  cxistiu;^ 

of  the  precedhij; 

|,jovitv,  but  Nvhich 

lost  ii»fornv.ition  at 

[at  the  result  of  a 
.isive  majority  ui 


100. 


UiSCPETION  IN  THE  DISSOLUTION  OF  A  PARLIAMENT.     543 

liofore  replying  to  tiiis  request,  the  governor  inquired 
wbeUier  tlie  existing  parliament  would  he  ready  to  grant  the 
r.ecussary  supplies  to  carry  on  the  public  strvicL  UiUil  a  inew 
parliament  could  be  convensiii.  Mr,  tHatt'ord  answered  tint 
he  had  no  doubt  that,  iu  I'ccordanee  with  <^onstitiitional  usage, 
the  recpiisite  supplies  for  the  public  sv^ivice,  limited  to  the 
shortest  i)eriod  which  would  enable  a  new  parliament  to 
meet,  would  be  voted. 

On  Oct.  7,  Governor  Bowon  made  known  his  decision. 
After  carefully  reviewing  the  case  in  all  its  bearings,  he  said 
he  was  unahle  to  acquiesce  in  an  immediate  dissolution.  He 
believed  fr(  (jucnt  dissolutions  to  be  objectionable  on  principle. 
"  They  liMve  an  obvious  tendency  to  cause  members  to  be 
regarded  as  mere  delegates  of  the  constituencies  and  not  as 
repvesentatives  of  the  country  at  large."  The  existing  par- 
liament, elected  for  five  years,  is  barely  eighteen  montiis  old. 
No  measure  of  urgent  importance  on  which  puhlic  opinion  is 
divided  is  before  the  country.  The  governor  was  not,  there- 
fore, satisfied  tliat  a  dissolution  would  materially  alter  the 
present  evenly  balanced  state  of  parties.  He  would  prefer 
to  try  and  form  a  new  ministry  on  a  wider  basis,  which  might 
be  strong  enough  to  carry  on  the  government  without  delay 
or  interruption. 

Accordingly,  the  Stafford  administration  resigned  office,  and 
on  Oct.  11,  the  Waterhouse  ministry  was  a[)pointed.  This 
Ctabinet  at  once  commanded  a  strong  working  majority  in  the 
legislature,  a  circumstance  whicli,  coupled  with  otlier  subse- 
quent events,  proved  unmistakably  thav  the  general  sentiment 
of  parliauKMit  and  of  the  country  was  in  favour  of  tiie  course 
pursued  b}'  (lovernor  Howen  on  this  occasion.'" 

Two  months  afterwards,  however,  tlie  premier  (Mr.  Water- 
house)  unexpectedly  brought  about  another  ministerial  crisis 
by  placing  his  resignation  in  the  governor's  hands,  'i  liero 
had  been  no  difference  whatever  l)etween  ministers  and  the 
governor,  nor  any  serious  dissensions  in  tin*  cahinet.  Hut 
Mr.  Waterhouse  was  dissatisfu'd  with  tlie  relations  l»etwcen 


Oovcrtior 
niiwiii  rt'- 

fllSL'S. 


New  mi- 

iiistry. 


""  New  Zofiland  IIousp  of  l{(>i)rp-  such  ciroiinistanres,   arkiiowlodjjed 

spiitiitivi's  .Idiinials,  1872,  aiH)X.  A.  the    n'ceipL  of   tli<!   p)Vi'rii(»r'.s  de- 

iio.  lO;  Lcj;-.  ("ouii  Journals,  1873,  sjiatrlics,  in  t'XplanafioiMif  liis  con- 

appx.    no.   4,   ]».   .').     The   inipt'iial  duot,  without  cuinnieuliug  theieou. 

Sfcrutary  of   state,  as  usual  under  Ihid.  p.  19. 


i- 


f     ♦     it 


544       PARLIAMENTARY  GOVEEXMENT  IN  THE  COLONIES. 


Five  mi- 
nistries ill 

Si'Vi'll 

niuiiihs. 


Sir  (}. 
(Jri-y  asks 
for  a  tlis- 
bulutiuii, 


wliicli 

(idVlTIlor 

Nornuiii- 
]ty  (io- 
C'iincti. 


himself  and  Mr.  Vogel,  a  Ijiotlier  minister,  wliose  influence 
in  the  cahinot  was  secniin^^ly  pretloniinant.  lie  therefore 
fkterniined  to  retire.  Tiie  governor  begged  him  to  recon- 
sider his  resolve,  in  view  especially  of  the  fact  that  the 
resignation  of  the  prime  minister  must,  by  constitutional 
usage,  dissolve  the  ministry,  and  this  too  at  a  very  inconve- 
nient period.  But,  as  Mr.  Waterhouse  adhered  to  his  deter- 
mination, the  governor  rec^uested  Mr.  Fox  to  assume  tlu; 
premiershi[)  and  reconstruct  the  ministry.  Mr.  Fox  under- 
took this  duty,  but  in  a  month  afterwards  he  also  resigned. 
Mr.  Vogel  was  then  ai)i)ointi'd  premier,  nudving  live  succes- 
sive adnunistiations  in  seven  months!  The  secretary  of  state 
for  the  colonics  was  duly  notified  of  these  transactions,  but 
lie  contented  himself  with  acknowledging  the  receipt  of  the 
desj)a!(.'hes  connnunicating  the  iidormalion." 

In  the  same  colony,  in  Novend)er,  l!S77,  the  premier.  Sir 
Cicorge  (irey,  rccpiested  the  governor,  the  Manjuis  of  Nor- 
manby,  to  dissolve  the  House  of  Uepresentatives,  on  account 
of  tlie  evenly  balan(;ed  state  of  parties  therein.  The  (irey 
administration  had  taken  ollice  on  Oct.  13,  previous,  on  the 
(lefi'at  of  their  predecessors  upon  a  vote  of  want  of  conlidence. 
On  Oct.  -4,  before  the  iu»w  ministers  had  announced  their 
intended  polity,  a  vt>te  of  want  of  conlitlence  was  submitted 
against  tLt.'m.  'J'his  was  negativeil,  on  Nov.  G,  by  the  casting 
vote  of  the  sjcaker.  Shortly  after,  a  similar  motitju  v/as  ])ro- 
])osed,  during  the  debate  u[)on  which  ministers  asked  for  a 
dissolution  t)f  {larlianient. 

'J'hey  based  their  claim  to  a  dissolution  upon  the  fact  that 
at  tlie  last  general  elet'tit>n  Uie  ex-ministry  were  in  power, 
antl  upon  tiieir  t onviction  that  the  new  elections  would  give 
them  a  large  majority  of  sni)porters. 

In  reply,  the  governor  expressed  his  opinion  that  a  dissolu- 
tit)n  was,  at  present,  undesirable;  principally,  because  (1)  he 
believetl  that  the  existing  dilliculties  might  be  disposed  of 
\vitln*'.i  reeo'>,>o  to  such  an  act;  (2)  because  the  parliamen. 
was  now  only  ii<  its  second  session,  and  legislation  was  con- 
templated upon  the  question  of  representation,  which  woultl 
probably  ne<os^it;ito  a  tlissolution  ;  (>))  because  no  great  ques- 


"  Now  Zf'iil  ml  Pari.  I'apers,  1373,  A.  1,  a.  pp.  7-20.     New  Zt?aland 
Stjiusticsj,  1876,  i)p.  0,  7. 


;e  iutlueuce 
e    tlu'vefove 
n\  to  vecon- 
vct  ili'.vt  the 
onstitutiousvl 
revy  inconvc- 
to'liisdeter- 
assiiiuo   tl»e 
•.  Fox  un<^<?i- 
^Iso  resigned. 
i<r  five  su(;ees- 
iTtivry  of  state 


usactions, 


but 


receipt  of  U»e 

le  premier,  Sir 
[arciuis  of  Nor- 
ves,  on  aeeoiuit 
\n.     Tlie  (ivey 
ivevions,  on  the 
.jtof  contiaence. 
vunouncecl  their 
,  was  subiuitted 
|G,hy  the  easting 
luotioii  was  pro- 
,tevs  asked  for  a 

[m  th(^  hvet  that 
,  were  iu  power, 
Lions  wouUl  give 

Li  that  a  dissoUi- 
y,  because  0)/^^; 
a,  l)C  disposed  ot 
so  tlie  pavliunieiil 
risiation  WAS  con- 
tion,  Nvhieh  wouUl 
use  no  great  ques- 

7-20.    "N'ew  Zealand 


DISCRETION  IN  THE  DISSOLUTION  OF  A  PARLIAMENT.     545 

tion  was  at  issue  upon  wliich  to  appeal  to  tlie  constituencies ; 

(4)  because  he  had  no  as^^uranee  that  a  dissohilion  would 
produce    a   working   majority  in    favour   of   niiuistcrs  ;  and 

(5)  because  no  supply  had  yet  been  granted  ;  and  unless  the 
house  should  first  vote  supplies,  for  at  least  three  mouths, 
the  governor  could  not  undertake  to  consider  the  (question  of 
a  dissolution. 

Furthermore,  it  did  not  appear  that  from  the  outset  this 
administration  had  been  able  to  command  a  majority  of  tlu^ 
house.  The  speaker's  vote,  which  alone  had  saved  them 
from  defeat,  is,  according  to  parliamentary  usage,  always 
given  with  a  view  not  to  preclude  the  house  from  reconsid- 
ering a  question  so  decided  U})on.  A  ^ix'aker's  casting-vote, 
given  to  negative  a  vote  of  want  of  conlidence,  "can  hardl}' 
be  taken  as  an  expression  of  conlidence  on  the  part  of  the 
house." 

Sir  George  Grey's  answer  to  tlie  governor's  memorandum 
was,  for  the  most  jjart,  a  vindication  of  his  right  to  a  dissolu- 
tion, whether  or  not  supply  should  be  previously  granted,  as 
to  which,  he  believe<l,  "the  governor  had  nothing  to  do,  be- 
cause the  decision  ought  to  rest  with  the  ministers,  the  par- 
liament, and  the  people." 

In  a  subsequent  n)emorandum,  ministers  strongly  urged 
the  necessity,  on  financial  grounds,  for  a  speedy  (lissolution. 
They  denied  the  right  of  the  governor  to  base  his  exercise  of 
the  power  to  dissolve  parliament  upon  the  prerogative  of  the 
Crown.  They  contended  that  it  was  a  power  deriv(>d  from 
the  constitution  act,  and  was,  tlierefore,  "one  of  those  ques- 
tions on  which,  according  to  constitutional  law,  the  governor 
should  act  on  the  advice  of  his  ministers."  They,  therefore, 
reasserted  their  right  to  a  dissolution,  "unfettered  by  any 
condition  of  supplies  being  granted;"  and  declined  to  enter 
into  any  compromise  in  the  matter. 

Tile  governor,  in  his  reply,  poiuted  out  that,  under  the  con- 
stitution act,  his  right,  at  his  own  discretion,  to  prorogue  or 
dissolve  the  Assembly,  was  clear;  and  tliat,  by  the  royal  in- 
structions, his  authority  to  exercise  that  right,  notwithstand- 
ing the  opposition  of  his  ministers,  was  estalilished.  Accord- 
ingly, he  "  could  nt)t  admit  that  ministers  ha\e  an  uiupialified 
right  to  a  dissolution  when  the  governor  may  consider  it 
undesirable  or  unnecessary." 


Sir 

(i.    (ill'V 

(Icnifs  iio- 
vcriioi'.* 
riulit  to 


'1 


n 


\^ 


'  1 


li 


n  111 


The  go- 
vernor is 
linu. 


He  .le- 
'■liiii's  a 
seeoiiil  rc- 
(liiest  to 
dissolve. 


646       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

Ministers  still  endeavoured  to  controvert  the  governor's 
arj^unients  ;  but  he  refused  to  di.scuss  with  them  his  coiistitu- 
tionul  position,  resj)()nsil)ilities,  or  duties  ;  tiiou«;h  lie  admitted 
their  undoubted  right  to  appeal  to  her  Majesty,  thron<,di  the 
secretary  of  state,  in  respect  to  his  condu(;t,  whenever  he 
miyiit  deem  it  his  duty  to  decline  to  comply  with  their  advic(!. 
Should  such  a  comi)laint  be  pref'-rrcd,  the  governor  would 
forward  it  to  the  secretary  of  state  with  such  ex])lanations  as 
mi<;ht  be  recjuired. 

Keiterated  attemi)ts  were  made  by  tlie  ministry  to  induce 
the  governor  to  give  way  and  grant  them  a  dissolution  of 
])arliament,  in  conformity  with  the  rights  wliieh  they  con- 
tentled  api)ertinncd  to  the  Queen's  ministers  in  England. 
Hut  his  Kxcellency  adhered  to  his  resolve,  not  under  picsent 
circumstances  to  yield  to  their  request,  until  at  any  rate  all 
other  e.\])edients  had  failed  to  beget  a  good  undei-slanding 
between  ministers  and  the  liouse.  lie  did  not  think  it  ex- 
pedient to  impose  an  unconstitutional  pressure  on  j)arliament 
liy  promising  a  dissolution  at  some  future  j)eriod,  when  it 
might  suit  ministers  to  go  to  the  country ;  nor  did  he  see  any 
immediate  need  for  such  an  act.  He  would  not  deny  that 
ministers  in  a  colony  have  equal  rights  with  ministers  in  Eng- 
land, in  matters  that  do  not  affect  imperial  niterests;  but  he 
did  not  believ(f  that,  in  similar  circumstances,  a  minister  in 
England  would  ask  for  a  dissolution  ''  when  there  was  no 
great  political  (juestion  directly  at  issue  between  the  contend- 
ing pvrties,  and  sinijdy  in  order  to  maintain  in  power"  an 
existing  administration. 

The  upshot  of  the  matter  was  tliat  parliament  was  pro- 
rogued, without  reference  to  any  contemplated  dissolution, 
the  usual  suj)|)lies,  meanwhile,  having  been  voted  fin-  the  .ser- 
vice of  the  current  year." 

A  month  after  the  i)rorogation.  Sir  (Jeorge  Cirey  renewed 
Ills  ai)i)lieation  to  the  governor  for  a  di.ssolution  of  jiarliament. 
Ilut  at  (his  time.  Lord  Xormanby  was  of  oj)inion  that  there 
was  a  fair  prospect  of  the  ministry  being  able  to  .secure,  in  the 
next  session,  the  supiKjrt  of  the  popular  chamber.  And  as 
there  was  no  definite  (juestion  at  issue  uiH)n  which  an  aj)p(>iil 
to  the  country  could  be  made,  the  governor  again  declined  to 


0  New  Zealand  Pari.  Papers,  1877,  A.  7;  ibid.  1878,  A.  1,  p.  3. 


't;} 

'^": 


E  COLONIKS. 

i  the  povornor's 
iL'in  liis  c'oiistitii- 
iigli  ho  iulinitted 
!sty,  tlir()U<?lf  the 
,(;t,  \vhenever  he 
with  their  ailvice. 
governor  woiilil 
h  exphiiiiitions  as 

ninistry  to  induce 
1  11  (lissohition  of 

which    tliey  eon- 
ters    in    Knjjihintl. 
not  under  ])resent 
itil  at  any  rate  all 
,()d  understanding: 
id  not  think  it  ex- 
sure  on  piirlianu'ut 
■e  period,  uhen  it 
nor  did  he  see  any 
Hdd  not  deny  that 
I  nuni>ters  in  Kn<;- 

mterests;  but  he 
mees,  a  minister  in 

hen  there  was  no 

I  ween  the  eontend- 
liiin  in  power "  an 

irliament  was  pro- 
ipliited   dissolution, 

II  voted  iVir  the  ser- 


DISCRETION  IN  THE  DISSOLUTION  OF  A  rAHLIAMF.NT.      547 

accede  to  this  request.  Upon  wliieli  Sir  (»eor<^e  (ney  re- 
])eated  liis  assertion  that  tiie  {governor  was  not  warranted  in 
exercising  any  discretion  in  the  matter,  and  claimed  that  he 
ought  to  grant  a  dissolution  whenever  a  ministry  tijouy;lit  lit 
to  demand  it. 

Wiiereupcui,  Ins  Excellency  submitted  the  entire  corre- 
spondence on  this  (luestion  to  the  secretary  of  state  for  the 
cdlonie.s.  Sir  M.  Ilicks-Heach,  in  a  despatch  dated  Feb.  lo, 
1878,  exj)ressed  his  dissent  from  Sir  (ieorge  (irey's  o[tinion, 
in  respect  to  tlu'  })owers  of  the  governor,  as  being  an  undue! 
limitation  of  the  pi-erogativc;  of  the  Crown.  lie  said  that 
"the  responsibility,  which  is  a  grave  one,  of  deciding  whether, 
in  any  particular  ea.se,  it  is  right  and  expedient,  having  re- 
gard to  tlie  claims  of  the  res[)eetive  parties  in  parlianu-nt,  and 
to  the  general  interests  of  the  colony,  that  a  di.ssolulion  should 
be  granted,  must,  under  the  ecmstitution,  rest  with  the  go- 
vernor. In  discharging  this  responsil)ility,  he  w  dl,  of  course, 
jtay  th(!  greatest  attention  to  any  representations  that  may  be 
made  to  him  by  those  who,  at  the  time,  are  his  constitutional 
advisers;  but,  if  he  slnudd  feel  himself  bonnd  to  take  the 
responsibility  of  not  folhtwing  his  ministers'  reconnnendation, 
there  can,  I  apprehend,  be  no  doubt  that  both  law  and  prac- 
tice empower  him  to  do  so,"'' 

The  (irey  administration  continued  i)i  office  for  about  two 
years.  Hnt,  on  July  'J!>,  187!',  they  wen;  defeated  by  a  ma- 
jority of  fourteen,  in  the  House  of  Ke[ircsentatives,  upon  an 
amendment  to  the  address  in  answer  to  the  speech  from  tlu; 
throne,  at  the  opi'uing  of  the  session.  'J'liis  amendment  ex- 
pressed a  want  of  confidence  in  tin;  ministry. 

Sir  (ieorge  (Jrey  then  apjilied  to  the  governor  (Sir  IFercu- 
les  liol)inson)  to  grant  him  a  dissolution  of  iiarliament.  His 
I'iXccilcnc^y  resiiondcd  to  the  retjiiest  in  the?  following  nicmo- 


Sccrctiiry 
of  state 
sii^tiiins 
till'  (i<). 
viiiior. 


Dcfiat  -it" 
(Inv  iiii- 
iiisti}'. 


use    I) 


'}■ 


the 


randum,  which  was  laid  on  the  table  ui'  the    ho 
premier :''  — 

"•  I  have  carefully  considered  the  jmsition  in  which  ministers 
are  placed  by  the  defeat  which  they  have  just  sustained  in  the 
House  of  Uepresentatives,  U[)on  a  no-conlidence  niotion  :  and 


!«.i 


1   !  . 


.  1878,  A.  1,  p.  3. 


r  //<;</..  1878  appx.  A.  2,  p.  11;  -i  New    Zeuhiiid     Tari.    Pupors, 

Xi'w    Zcahiiitl    (lazi'tlc,    1878,   pp.     1879,  A.  1. 
iill-!lll. 


♦ 


I     ! 


548     rARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


Oovprnor    I  am  clearly  of  opinion  that  they  have  a  fair  constitutional 
cUuin  to  a  tlissolution. 


piTinits  an 

Hppoal 

to  the 

pi'ople, 

condi- 

tiuiiully. 


*'  No  doubt,  a  genoial  election  at  the  present  moment 
would  be  inconvenient,  havin<^  rej^ard  to  the  condition  of 
public  business  (the  prevailiui,'  financial  depression)  and 
the  circumstances  of  the  colony  j^encrally,  —  especially  the 
native  dillicultics  upon  the  west  coast.  But  I  presume  that 
ministers  have  carefully  considered  the  conso(iuences  of  such 
a  step,  before  tenderinj^  to  me  advice  to  dissolve  ;  and  I  fim, 
therefore,  prepared  to  adopt  their  recommendation,  —  leaving 
with  tiiem  the  entire  responsibilit}-  of  such  a  proceeding. 

"  At  the  same  time,  I  think  it  right  to  stipulate  that  the 
well-recognized  constitutional  principles  which  govern  cases 
like  the  i)rcsent  shall  be  strictly  adiiered  to.  Ministers  have 
lost  tlie  confidence  of  the  representatives  of  the  people,  and 
are  about  to  appeal  from  them  to  the  country.  A  majority  of 
the  House  of  Ile^jresentatives  has  declared  that  ministers 
have  so  neglected  and  mismanaged  the  administrative  busi- 
ness of  the  country  that  they  no  longer  possess  the  confidence 
of  parliament.  It  is  indisi)ensable,  in  such  circumstances, 
if  ministers  do  not  at  once  resign,  that  parliament  shall  be 
dissolved  with  the  least  possible  delay  ;  anti  tliat,  meanwhile, 
no  measure  shall  be  proposed  that  may  not  be  imperatively 
required,  nor  any  contested  motion  whatever  brought  for- 
ward. It  is  necessary  also,  and  in  accordance  with  esta- 
blished constitutional  precedent,  that  tlie  new  })arliament 
shall  be  called  together  at  the  earliest  moment  at  which  the 
writs  are  returnable. 

"  If  ministers  accept  a  dissolution  upon  this  understanding, 
I  beg  tliat,  in  any  exi)lanation  which  the  prenucr  may  tiiink 
proper  to  make  to  parliament,  the  answer  which  I  hav(>  given 
to  his  tendered  advice  may  be  stated  in  my  own  woriis. 

"  IIeucules  Kodinson. 

"July  no,  1870." 

By  a  "  contested  motion,"  the  governor  subsequently  ex- 
plained to  Sir  George  Grey  that  he  did  not  mean  a  bill  of 
supply  or  a  loan  bill.  Ministers,  thereupon,  entered  into 
connnunication  with  the  opposition,  for  the  purpose  of  ar- 
riving at  a  good  understanding  in  respect  to  the  measures 
which  should  be  allowed  to  i)roceed  without  objection,  as 
being  of  imperative  importance,  and  not  involving  any  dis- 


COLONIES. 

:  constitutional 

resent   moment 
he  condition  ol' 
lepvessiou)    and 
—  especially  the 
I  presume  that 
(juences  of  such 
live;  and  I  am, 
iation,  —  leaving 
proceeding, 
ipulate  that  the 
ich  govern  cases 

Ministers  have 
•  the  people,  and 
y.     A  majority  of 
3d  that   ministers 
ministrative  busi- 
ess  the  confidence 
fh  circiunstances, 
uliament  shall  be 
that,  meanwhile, 

be  imperatively 
L'ver  brought  for- 
•dance   with   esta- 

new  ])arliament 
iient  at  which  the 

lis  understanding, 
n-omicr  may  think 
^rhich  I  have  given 

own  words. 

LES    llOlilNSON, 


r  subsequently  ex- 
ot  mean  a  bill  of 
pon,  entered  into 
he  purpose  of  i"- 
;t  to  the  measures 
.hout  objection,  as 
involving  any  dis- 


1 


DISCRETION  IN  THE  DISSOLUTION  OF  A  TARLIAMENT.     549 

putod  principle.""      On  Aug.  11,  parliamoDt  was  ])rorogued  by 
conunissiou,  and  the  dissolution  eiisuid  shortly  iilterwards. 

Meanwiiile,  however,  a  curious,  if  not  an  unprecedented.  Both 
circumstance  occurred.      The  maioritv  in  both   branches  of  '><»"'*•''' «'-l< 
the  legislature  were  not  aisposed  to  accept  the  assurances  oi   mnliiiii- 
the  premier  that  a  new  parliament  should  be  convened  at  the   '"^''''''n  "' 
earliest   possible    moment.       Ibey,   tliereldre,   passed   lonniil   liaintnt. 
resolutions  and    addresses  to   the  governor  on   tlitj    siibjixt, 
retpiesting  his  Excellency  to  take  such  stei)S  as  might  al'lord 
an  adi'cpiate  security  that  the  meeting  of  the  new  i)ailianient 
sliould  not  he  delayed  any  longer  than  might  be  indispensa- 
bly necessary.      Whereupon,   the  following   correspondence 
took  })lace    between    the  governor  and    the  premier,  which, 
by  desire  of  the  governor,  was  presented  to  both  houses  of 
the  General  Assembly  :  **  — 

"  Memorandum  for  the  Premier. 

"Tiie  governor  has  received,  from  the  speaker  of  the 
Legislative  Council  and  from  the  speaker  of  the  House  of 
Representatives,  addresses  which  have  been  ado^tted  by  each 
house  of  the  legislature,  in  elVect  urging  the  governor  to  in- 
sist upon  the  faithful  fulfilment  of  the  stipulation  which  lie 
attached  to  the  promise  of  a  dissolution;  namely,  that  the 
new  parliament  shall  be  called  together  at  the  earliest  mo- 
ment at  which  the  writs  can  be  made  returnable. 

"  In  view  of  these  circumstances,  and  of  the  fact  that 
ministers  have  been  condemned  in  both  houses  of  parlia- 
ment,—  having  regard  also  to  tiie  critical  state  of  native 
affairs,  —  the  governor  considers  that  it  is  his  bounden  duty 
to  take  every  possible  precaution  that  he  shall  be  in  a  i)osition 
to  recur  to  the  advice  of  a  new  parliament  at  the  earliest  date 
allowed  by  law. 

"The  governor  desires,  therefore,  to  inform  the  premier 
that,  before  proroguing  parliament  with  a  view  to  dissolution, 
he  must  receive  from  the  premier  a  written  assurance,  which 
shall  appear  to  the  governor  satisfactory,  as  to  the  date  on 
which  the  premier  will  advise  the  issue  of  the  new  writs,  and 
the  date  upon  which  he  will  advise  that  they  be  made  re- 
turnable. 

"  TTercules  Robinson. 

"Aug?,  1879" 

•■  New  Zealand  Pari.  Dt.'b.  vol.  xxxi.  p.  327. 
•  2<ew  Zealand  Pari.  Papers,  1879,  A.  2. 


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550       PARLLA.MENTARY  GOVERNMENT  IN   THE  COLONIES. 

'''•  Memorandum  for  his  Excellency.'^ 

Ministe-  "  Sir  George  Grey  presents  his  respectful  compliments  to 

rial  pledge  gij.  Hgrcules  Robinson, 
thereon. 

"  In  obedience  to  the  terms  of  the  directions  contained  in 

the  governor's   memorandum  of  the   7th   inst.,  Sir  George 

Grey  gives  a  written  assurance  that  ho  will  advise  that  the 

writs  summoning  the  new  parliament  shall  be  issued  within 

two  days  after  the  dissolution,  and  that  they  shall  be  made 

returnable   witliin   thirty   days   after   tlieir    issue  ;    and    Sir 

George  Grey  trusts  that  this  assurance  will  be  satisfactory  to 

the  governor. 

"  G.  Grey. 

"  Wellington,  Aug.  8,  1879." 

'•''  Memorandum  for  the  Premier. 

"  The  governor  thanks  the  premier  for  his  memorandum  of 
this  date,  and  in  reply  has  much  pleasure  in  informing  him  that 
the  assurance  which  it  contains  is  quite  satisfactory. 

"  If  the  premier  sees  no  objection,  the  governor  would  be 
glad  if  lie  would  communicate  to  the  Legislative  Council  and 
to  the  House  of  Rei)resentatives  the  governor's  memorandum 
of  yesterday,  with  the  subsequent  memoranda  on  the  subject, 
as  showing  to  both  houses  the  action  taken  by  the  governor 
upon  their  addresses. 

"  Hercules  Robinson. 

"  Aug.  8,  1879." 

Groy  mi-  The  elections  virtually  turned  on  the  question  whether  Sir 
nistry  de-  Q  Grov  should  continue  to  rule  the  colony.  They  resulted 
unfavourably  to  his  administration  ;  so  that,  on  the  assem- 
bling of  the  new  parliament,  on  Sept.  24,  a  vote  of  want  of 
confidence  was  proposed,  which,  after  a  protracted  debate,  was 
carried  against  ministers,  but  only  by  a  majority  of  two.  On 
Oct.  3,  tlio  ministry  resigned.  Mr.  John  Hall  was  then  en- 
trusted by  the  governor  with  the  formation  of  a  new  adminis- 
tration,—  a  task  which  he  successfully  accomplished.  Sir 
George  Grey  accepted  his  defeat,  and  declared  his  intention 
of  not  again  being  a  candidate  for  office.* 

Mr.  Hall  announced  the  intended  policy  of  his  ministry  in 
the  House  of  Representatives,  on  Oct.  14.     But  the  new  ad- 


No  w  mi- 
nistry 
formed. 


t  ti 


The  Colonies,"  newspaper,  Oct.  11,  and  Nov.  29,  1879. 


IE  COLO^'IES. 


cy, 

[  compliments  to 

ions  contained  in 
inst.,  Sir  George 
I  advise  that  tlie 
be  issued  witliiu 
ey  shall  be  made 
'  issue ;  and  Sir 
be  satisfactory  to 

"  G.  Grey. 


ner. 

is  memorandum  of 
informing  him  that 
isfactory. 

governor  would  be 
slative  Council  and 
nior's  memorandum 
nda  on  the  subject, 
n  by  the  governor 

RCULES  Robinson. 


iny 


3 


uestion  whether  Sir 
They  resulted 
lat,  on  the  asseni- 
a  vote  of  want  of 
tracted  debate,  was 
iijority  of  two.     On 
Hall  was  then  en- 
n  of  a  new  adminis- 
accomplished.      Sir 
dared  his  intention 

y  of  his  ministry  in 
But  the  new  ad- 

ud  Nov.  29,  1879. 


(iri'V  tries 
to  kc'fp 
new  ]ire- 
inicr  out 

of   till' 

House. 


DISCRETION  IN  THE  DISSOLUTION  OF  A  PARLIAMENT.      551 

ministration  were  met  by  vehement  opposition  in  that  cham- 
ber, before  they  had  time  to  prove  their  fitness  for  office.  A 
vote  of  want  of  confidence  was  proposed  against  them  at  tlio 
outset.  They  succeeded,  however,  in  winning  over  certain  of 
tlieir  opponents  ;  this  motion  was  withdrawn,  and  the  new 
ministry  proceeded  successfully  with  public  business.'* 

Sir  George  Grey,  however,  undertook  to  assail  the  new   sir  (i. 
premier  upon  extraordinary  grounds,  tmd  in  a  very  unprece- 
dented and  discreditable  manner. 

It  appears  that  Mr.  Hall  was  a  member  of  the  Legislative 
Council ;  but,  previously  to  the  general  election,  he  deter- 
mined to  resign  his  seat  therein,  with  a  view  to  election  to  the 
House  of  Representatives,  and  for  the  purpose  of  leading  his 
party  in  that  house.  He  accordingly  ai)paed  to  the  governor 
for  permission  to  relinquish  his  seat  as  a  life-member  in  the 
Council,  which  had  been  repeatedly  done  before,  under  simi- 
lar circumstances.  Sir  G.  Grey  (then  in  ofHce  as  premier) 
endeavoured  to  thwart  Mr.  Hall  in  this  project,  and  declined 
to  consent  to  the  formal  acts  necessary  to  complete  the 
transaction. 

The  governor  remonstrated  witli  the  premier  for  such  un- 
generous conduct.  He  pointed  out  that  it  was  a  perfectly 
justifiable  as  well  as  a  not  unusual  proceeding,  and  declined 
"  to  lend  himself  to  any  device  for  placing  one  of  the  pre- 
mier's political  opponents  under  a  disability  not  imposed  by 
law,"  declaring  that  he  would  not  be  "  a  party  to  such  an 
unprecedented  and  strained  exercise  of  a  mere  formal  act  of 
prerogative  for  party  purposes."  Sir  G.  Grey,  however,  per- 
sisted in  his  opposition,  and  warned  Sir  Hercules  Robinson 
that  "  every  act  of  the  governor  must  be  done  under  advi(;e 
and  ministerial  responsibility."  The  governor  replied  that 
this  doctrine  was  undoubtedly  correct,  but  that  a  governor 
"  could  always  reject  ministerial  advice,  if  he  were  prepared  to 
face  the  constitutional  consequences  ;  and  that,  in  this  case,  if 
such  advice  were  tendered,  he  should  unquestionably  refuse 
it,  which  would  leave  the  premier  with  the  constitutional 
alternative  of  resignation  or  acquiescence  in  the  refusal." 
The  premier  then  took  his  departure,  saying  he  should  con- 


f'l? 


m 


!       \.  I 


"  "The  Colonies"  newspaper,  Dec.  C,  and  27,  1879,   New  Zealand 
Pari.  Deb.  vol.  xxxii.  p.  579. 


But  is 
frustrated 
by  tlie  go- 
vernor. 


Sir  G. 
it  ivy  (le- 
cliiios  re- 
sponsi- 
bility. 


Tasmania 
ministry 
ask  for  a 
dissolu- 
tion. 


552       PARLIAMENTARY  GOVERNMENT  IN  TIIE  COLONIES. 

suit  his  colleagues.  The  result  was,  that  the  necessary  papers 
to  complete  Mr.  Hall's  resignation  were  quietly  sent  to  the 
governor  for  his  signature. 

Afterwards,  in  debate  in  the  House  of  Representatives,  Sir 
George  Grey,  without  permission  of  the  governor,  disclosed 
these  particulars,  disavowed  any  responsibility  for  the  trans- 
action by  which  Mr.  Hall  was  enabled  to  vacate  his  seat  in 
one  house  so  as  to  become  a  candidate  for  the  other,  and 
threw  upon  the  governor  the  onus  and  responsibilit}'  of  it. 

This  placed  the  governor  in  a  dilemma.  He  was  anxious 
not  to  obtrude  liis  name  and  authority  before  cither  house  of 
parliament  in  an  irregular  way ;  and  yet  he  could  not  allow 
such  unwarrantable  conduct  on  the  part  of  Sir  George  Grey 
to  pass  without  notice  or  explanation.  His  Excellency  there- 
fore put  in  writing  the  history  of  this  occurrence,  and  gave 
the  memoranduui  to  Mr.  Hall  to  make  what  use  of  it  he 
pleased.  Mr.  Hall  read  this  paper  to  the  house.  It  plainly 
showed  that,  while  Sir  G.  Grey  had  publicly  stated  that  he 
had  opposed  the  act  in  question,  but  that  the  governor  bad 
insisted  upon  it,  and  therefore  it  had  been  done  by  him,  "  with- 
out advice  ;  "  that  this  statement  was,  in  fact,  "  only  half  the 
truth."  Sir  G.  Grey's  subsequent  conduct,  in  causing  the 
papers  necessary  to  perfect  jNlr.  HalFs  resignation  to  be  for- 
warded to  the  governor  "  without  any  adverse  advice,"  was 
tantamount  to  his  formal  acquiescence  in  the  act,  and  rendered 
himself,  as  premier,  and  not  the  governor,  solely  responsible 
for  the  same  to  the  House  of  Representatives.^  It  need 
not  be  said  that  this  is  sound  doctrine,  for  no  ministry  can  re- 
lieve themselves  from  the  responsibilit3^of  having  advised  an 
act  done  by  the  Crown  during  their  continuance  in  office.^ 

In  Tasmania,  in  May,  1877,  the  Fysh  ministry  having  been 
defeated  in  the  House  of  Assembly  on  a  vote  of  want  of  con- 
fidence, the  premier  requested  the  governor  to  grant  them  a 
dissolution,  inasmuch  as  they  had  lately  acceded  to  ofiice  upon 
the  voluntary  resignation  of  their  predecessors,  and  because, 
for  years  past,  there  had  been  a  want  of  co-operation  between 
the  Two  Houses  of  Parliament. 

The  governor  (Mr.  F.  A.  Weld)  in  a  memorandum  dated 
May  11,  1877,  reviewed  the  position  of  ministers.     He  admit- 

"^  Xow  Zealand  Pari.  Deb.  vol.  xxxii.  pp.  283-289,  387,  397. 
"  See  anle,  pp.  19,  39,  94. 


I      V 


.  1  1 

I-  •  ; 


[E  COLONIES. 

necessary  papers 
detly  sent  to  the 

.presentalives,  Sir 
jveruor,  disclosed 
lity  for  the  trans- 
vacate  his  seat  in 
'or  the  other,  and 
onsibility  of  it._ 

He  was  anxious 
ore  either  house  of 
le  coiihl  not  allow 
of  Sir  George  Grey 
ts  Excellency  there- 
cnrrence,  and  gave 
what  use  of  it  he 
,  house.     It  P^^^i^^y 
)licly  stated  that  he 
at  the  governor  had 
donebyhim,"with- 
fact,  ''  only  half  the 
luct,  in  causing  the 
.signation  to  be  for- 
^dverse  advice,"  was 
the  act,  and  rendered 
or,  solely  responsible 
eutativcs.v      It  need 
ov  no  ministry  can  re- 
pf  having  advised^an 
[tinuance  in  office.* 
ministry  having  been 
,  vote  of  want  of  coii- 
ernor  to  grant  them  a 
acceded  to  office  upon 
'  ^eessors,  and  because, 
co-operation  between 

la  memorandum  dated 
1  ministers.     He  admit- 

^83-289,  387,  397. 


DISCRETION  IN  THE  DISSOLUTION  OF  A  PARLIAMENT.      553 

tod  the  '•easonableness  of  their  request,  and  consented  to  the 
dissolution.  Tint  in  a  subseqent  despateli  to  the  colonial  sec- 
retary, lie  took  occasion  to  declare  "  that  in  all  cases  the  re- 
]tresentative  of  the  Crown  should  be  more  careful  in  grant- 
ing a  dissolution  than  the  Crown  might  be  in  England  ;  as  he 
must  sometimes  be  advised  by  ministers  not  sufficiently  deter- 
mined to  waive  small  party  advantages,  somewhat  accustomed 
occasionally  to  the  sledge-hammer  style  f  f  political  warfare, 
and  not  uniformly  imbued  with  that  constitutional  knowledge 
and  spirit  which  often  seems  hereditary  and  is  generally  inhe- 
rent in  British  statesmen." 

His  Excellency  did  not  refer,  in  his  memorandum,  to  the 
question  of  supplies,  because  he  thought  that  "  the  Crown 
ought  not  beforehand  to  express  its  decision  upon  a  theoreti- 
cal question  not  immediately  before  it,"  and  because  "  he 
liad  no  right  to  suppose  that  parliament  would  depart  from 
the  most  usual  and  most  constitutional  course  of  voting  neces- 
sary supplies  for  the  period  that  must  elapse  before  the  meet- 
ing of  the  new  parliament."  But  he  did  not  hesitate  to  say 
"  that  nothing  but  the  most  extreme  and  clear  public  neces- 
sity would  justify  the  Crown  in  dissolving  after  supplies  had 
been  refused."  And  he  privately  notified  the  prime  minister 
that,  in  the  event  of  previous  supply  being  now  refused,  he 
should  require  the  administration  to  resign.  The  premier 
replied  :  "  I  would  not  ask  you.  Sir,  to  do  any  thing  tliat  you 
consider  to  be  contrary  to  your  duty."  The  supplies  were 
accordingly  voted. 

The  governor's  memorandum  was  laid  on  the  table  of  the 
Assembly  by  ministers,  and  the  house  proceeded  to  criticise 
the  contents  of  that  document.  They  recorded  their  opinion 
that  his  Excellency's  statements,  upon  which  he  had  agreed 
to  allow  the  ministers  a  dissolution  of  parliament,  were  inac- 
curate, and  tliat  consequently  the  deductions  therefrom  were 
erroneous.  This  was  unmistakably  to  impugn  the  governor's 
decision  ;  and  Avas  a  proof  of  the  irregidarity  of  the  course 
taken  by  ministers  in  making  public  a  document  which  should 
have  been  held  as  confidential,  tliereb}^  exposing  the  governor 
to  attack  from  their  political  opponents.  His  Excellency, 
however,  refrained  from  any  attempt  at  self-justification,  and 
would  not  allow  liimseli  to  be  drawn  into  controversy  with 
the  House  of  Assembly.    He  dissolved  parliament,  and  then 


Oovprnor 
Weld  ac- 
cedes, 


provided 
bupply  is 
first  voted. 


Oovornor 
cliiir^od 
with  error 
!)>'  Assem- 
bly. 


'iM 


(" 


~:pim*MMMWi 


1      ';'' 
i        ■"' 

1      ''3     ! 

■I    i 
■'    1 

j 

'    i 

j 

1 
1 

ministry 
iisks  for 
a  ilissulu- 
tioii, 


554       rAT^LTAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

wrote  a  despatch  to  the  secretary  of  state  for  the  colonies  in 
explanation  of  his  condnct.  In  reply,  lie  received  a  despatch 
expressing  approval  by  her  Majesty's  government  of  liis  action 
in  this  matter.  Pursnant  to  an  address  from  tlic  Legislative 
Council,  this  correspondence  was  communicated  to  the  local 
parliament.'' 
.     ,,  „  In  1879,  the  Crowther  administration  (which  replaced  that 

Tasinaiiia  of  Mr.  (jriblin  in  l)ecenu)er,  18/8;  Mr.  (lihlin  having  suc- 
ceeded Mr.  Fysh  as  premier,  without  any  furtlier  change  in 
the  ministry  in  March,  1878),  finding  themselves  too  weak 
to  carry  on  the  government  in  the  existing  House  of  Asseni- 
h\y,  applied  to  the  governor  to  grant  them  a  dissolution  of 
parliament.  The  ministry,  moreover,  had  been  further  weak- 
ened by  the  following  resolution,  which  was  carried  in  the 
Legislative  Council  on  Oct.  14,  1871) :  — 

"That  the  conduct  of  the  Hon.  W.  L.  Crowther,  the  pre- 
mier of  tliQ  colony,  in  promoting  an  appeal  U)  the  public  of 
Tasmania  (on  behalf  of  Gertrude  Kenny,  late  matron  of  the 
New  Norfolk  Asylum),  [who  had  been  dismissed  from  her 
ofhce  by  order  of  the  asylum  connnissioners],  in  which  grave 
reflections  are  made  on  the  commissioners  of  the  hosi)ital  for 
the  insane,  is  unwarranted,  highly  unbecoming,  and  deserves 
the  censure  of  this  Council." 

The  ministerial  memorandum  for  the  governor  was  as  fol- 
lows:— 

'•Ministers  considered  it  their  duty  to  ask  for  a  dissolution 
for  the  following  reasons:  — 

"  1.  Parties  being  so  equally  divided  in  the  present  house, 
the  difficulty,  if  not  impossibility,  of  carrying  on  the  govern- 
ment in  a  satisfactory  manner  appeared  to  them  to  warrant 
an  ai)peal  to  the  several  constituencies. 

"2.  That  ministers  having  submitted  a  distinct  policy,  in- 
cluding direct  taxation  on  property  and  income  and  the  reform 
of  the  constitutional  act,  the  country  should  be  called  upon 
to  express  an  opinion  favourable  or  otherwise  of  that  policy. 

"3.  That  ministers  were  bound,  in  justice  to  their  sup- 
porters and  themselves,  to  evidence  their  willingness  to  sub- 
mit both  the  policy  and  personnel  of  the  administration  to  the 


»  Tasmania  Leg.  Coun.  Journals,  1877,  soss.  2,  no.  45;  ibid.  sess.  4, 
uo.  19. 


7,  COLONICS. 

the  colonies  in 
lived  a  dospiiteh 
ont  of  his  action 
I  tlio  Let^ishitive 
Led  to  the  local 

ich  replaced  that 
)lin  having  suc- 
irtlier  change  in 
iselves  too  weak 
louse  of  Asseni- 
a  dissolution  of 
>en  furthev  weak- 
as  carried  in  the 

'rowther,  the  pre- 
J  to  the  pul)lic  of 
Lite  matron  of  the 
smissed  from  her 
s],  in  which  grave 
)f  the  hospital  for 
^ling,  and  deserves 

)vernor  was  as  fol- 

k  for  a  dissolution 

the  present  house, 
^ng  on  the  govern- 
tliem  to  warrant 

[distinct  policy,  in- 
mie  and  the  reform 
Id  be  called  npon 
ise  of  that  policy. 
Itice  to  theiv  sui>- 
Uillingness  to  sub- 
ministratiou  to  the 

L  no.  45;  ihiJ-  sess.  4, 


r  ,1-  r 


DISCRETION  IN  THE  DISSOLUTION  OF  A  PARLIAMENT,      boo 

verdict  of  the  electors,  as  the  present  house  had,  by  a  majo- 
rity of  one,  ex})ressed  its  want  of  conlidence  iu  ministers. 

"  The  premier  and  the  colonial  secretary  waited  ui)on  tlie 
governor,  and  asked  foi-  a  dissolution  on  the  grounds  above 
stated,  and  expressed  their  belief  that  they  were  justified  in 
making  the  application,  and  desirous  at  the  same  time  that 
whatever  decision  liis  Excellency  might  arrive  at  such  apjili- 
cation  should  be  duly  recorded." 

The  jrovernor  in  the  following  memorandum,  addressed  to 
the  premier,  declined  to  grant  a  dissolution :  — 

"  1.  A  vote  of  want  of  confidence  in  ministers  having  been 

carried  in  the  House  of  Assembly,  they  have  asked  for  a  dis- 
solution. 

"  2.  The  present  House  of  Assembly  was  elected  a  little 
over  two  years  ago. 

"  8.  It  was  elect(Ml  under  the  auspices,  and  the  dissolution 
had  been  given  at  the  request,  of  the  party  now  in  oll[i(;e. 

"4.  I  have  no  assurance  or  ground  for  belief  that  a  ge- 
neral election  would  now  materially  alter  the  strength  of 
parties. 

"5.  No  distinct  division  of  parties  in  the  house  upon  any 
question  to  be  put  to  the  country  has  been  shown  to  my 
satisfaction.  The  (piestion  of  direct  taxation  was  to  some 
extent  brought  before  the  country  at  the  last  election,  but 
appeared  little  to  influence  the  result.  An  income-tax  bill 
passed  the  House  of  Assembly  last  session,  and  the  principle 
of  direct  taxation  has  since  been  virtually  reaflirmed  by  that 
house.  Now  I  am  asked  to  dissolve  the  Assembly,  and  to 
appeal  to  the  country  on  a  financial  policy  which  has  never 
been  rejected  by  that  house,  nor  even  by  the  Legislative 
Council  this  session. 

"  6.  The  question  of  the  relations  between  the  two  houses 
has  indeed  been  raised,  but  it  has  not  taken  a  substantial 
form,  or  become  a  line  of  party  demarcation. 

"  7.  The  Legislative  Council  has  this  session  expressed  no 
opinion  npon  either  of  these  two  questions  of  policy. 

*■'  8.  In  my  opinion,  the  time  has  not  yet  arrived,  even 
though  it  possibly  may  arrive,  when  these  questions  can  be 
])roperly  considered  ripe  for  reference  to  the  country  as  a  test 
between  one  party  and  the  other.     Were  a  dissolution  new 


which 
(iovoriior 
Weld  tli- 
cliiioij  to- 
graut. 


i!  iiil 


il" 


m 


1?         ' 

1 

i  j 

ti 

1 

i     I 


I 


556       PAHLIAiMENTARY  GOVERNMENT  IN   THE  COLONIES. 

granted,  tlie  real  issue  at  a  general  election  would  be  the 
l)ersonal  question  of  confidence  in  certain  members  of  the 
ministry  as  decided  in  the  house,  or  of  th'e  oj^position,  and  not 
questions  of  policy. 

"  9.  Considering  all  the  circumstances  of  the  case  I  do  not 
think  that  such  an  issue,  though  in  some  cases  a  sufficient 
ground  for  an  appeal  to  the  country,  now  warrants  the  dis- 
solution of  a  comparatively  young  Ho':se  of  Assembly,  at  a 
time  when  the  financial  position  of  the  colony  is  admittedly 
suffering  by  the  delay  of  urgently  necessary  measures,  until 
it  has  been  proved  that,  tlie  present  parliament  cannot  furnish 
a  -ministry  able  to  carry  on  the  public  business,  more  espe- 
cially as  new  combinations  are  understood  to  havo  been  under 
consideration  by  members  of  both  parties,  and  divergences 
of  opinion  on  political  questions  between  opposite  sides  of  the 
house  do  not  seem  rigidly  defined  or  clearly  irreconcilable. 

"  10.  It  will  moreover  be  in  the  recollection  of  the  premier 
and  of  the  colonial  secretary  that,  before  their  assumption 
of  office,  I  warned  them  that  I  was  not  prepared  to  grant  a 
dissolution  under  existing  circumstances  without  special  and 
strong  reasons  being  adduced ;  that  I  had  taken  the  same 
course  with  Mr.  Giblin,  their  predecessor,  who,  concurring 
with  my  view,  did  not  ask  for  a  dissolution. 

"  Ministers  will  also  observe  on  reference  to  my  memo- 
randum of  May  11,  1877,  that  most  of  the  conditions  which 
then  le  I  me  io  give  their  party  a  dissolution  are  now  want- 
ing, and  consequently  I  am  unable  to  accept  their  advice. 

"F.  A.  Weld. 

"  Government  House,  Oct.  18,  1870." 

Upon  receipt  of  this  memorandum  the  premier  placed  the 
resignation  of  ministers  in  his  Excellency's  hands.  Mr.  Gib- 
lin was  then  sent  for,  and  he  succeeded  in  forming  a  new 
ministry.y 

Adverting  to  the  observations  contained  in  Governor 
Weld's  despatch  to  the  secretary  of  state  of  May  20, 
1877,  in  reference  to  the  necessity  for  a  grant  of  supply 
by  a  colonial  Assembly  in  anticipation  o^'  a  dissolution  of 


y  Tasmania  Leg.  Coun.  Papers,  1879,  no.  66;  "The  Colonies,"  Dec. 
6,  187U. 


E  COLONIES. 

1  would  be  the 
iienibers  of  the 
jositioii,  and  not 

;he  case  I  do  not 
ases  a  sufficient 
vavrants  the  dis- 
t  Assembly,  at  a 
>ny  is  admittedly 
Y  measures,  until 
lit  cannot  furnish 
iness,  more  espe- 
have  been  under 
and  diveigcnces 
)osite  sides  of  the 
irrecoricilable. 
on  of  the  premier 
their  assumption 
■pared  to  grant  a 
thout  special  and 
I  taken  the  same 
who,  concurring 

ice  to  my  memo- 
conditions  which 

ion  are  now  want- 
their  advice. 
"B\  A.  Weld. 

)remier  placed  the 
ands.  Mr.  Gib- 
111  forming  a  new 

ned  in  Governor 
tate  of  May  20, 
grant  of  supply 
^'  a  dissolution  of 

'The  Colonies,"  Dec. 


!!! 


I  n\ 


DISCRETION  IN  THE  DISSOLUTION  OF  A  PARLIAMENT.     557 

parliament  in  consequence  of  a  ministerial  defeat,  it 
may  be  stated  tliat  in  England,  Parliament  has  never 
hesitated  to  vote  whatever  supplies  may  be  required 
for  the  public  service.  15ut  upon  a  change  of  ministry, 
or  other  ministerial  crisis,  which  mav  necessitate  a 
speedy  dissolution  of  Parliament,  it  is  obviously  im- 
proper to  ask  the  House  of  Commons  to  vote  either 
the  whole  amount,  or  to  approve  of  all  the  details  of 
the  proposed  estimates,  and  so  commit  Parliament  to  the 
financial  policy  of  a  ministry  whose  fate  s  about  to  be 
determined  by  a  general  election.  Under  such  circum- 
stances, it  is  customary  to  limit  the  grant  of  supply  to 
the  amoimt  absolutely  required  for  ordinary  expendi- 
ture until  the  reassembling  of  Parliament.  This  affords, 
moreover,  a  guarantee  that  there  will  be  no  unneces- 
sary delay  in  convening  the  new  Parliament.'' 

But,  in  the  colonies,  this  most  important  principle 
has  not  been  uniformly  observed,  as  will  appear  from 
various  cases  recorded  in  this  section.'  It  is,  however, 
gratifying  to  note  that  English  usage  in  this  particular 
is  being  gradually  introduced  into  colonial  practice. 

This  question  will  be  further  elucidated  on  reference 
to  the  following  case  :  — 

In  1877,  the  governor  of  New  South  Wales  (Sir  Hercules 
Robinson)  submitted  to  the  secretary  of  state  for  the  colonies 
a  question  in  regard  to  the  exercise  of  the  prerogative  right 
of  dissolving  parliament,  upon  which  the  views  of  her  Ma- 
jesty's government  as  to  the  administration  of  this  pre- 
rogative were  specially  desired,  for  the  guidance  of  colonial 
governors. 

It  appears  that  it  had  become  customary  in  New  South 
Wales  to  delay  the  grant  of  the  annual  supplies  until  after 
the  commencement  of  the  year  to  which  they  were  applicable. 
Sometimes  this  delay  was  protracted  until  eight  or  nine 
months  of  the  new  fiscal  year  had  expired.     Meanwhile,  the 

«  Todd,  ParL  Govt.  vol.  i.  p.  despatch  to  the  Earl  of  Carnarvon, 
48G.  dated  Nov.  10,  1877:  New  Zealand 

"  And  see  Governor  Norman  by 's    Pari.  Papers,  1878,  A.  1,  p.  4. 


Supply 
always 
;;ranii'(l  in 
iMi^Mand 
iKt'orc 
dissolu- 
tion. 


Not  al- 
ways in 
colonies. 


Governor 
Robinson 
in  Now 
South 
Wales. 


I.:. 


;i  1 


Asks  Im- 
I»i'iijil  11(1- 
vii'i'  as  to 
condi- 
tional 
jn'oMiisc  of 
a  dissolu- 
tion. 


658       TAIILIAMKNTARY  GOVERNMENT  IN  THE  COLONIES. 

servirns  were  carriod  on  by  temporary  montlily  supply  bills, 
bastMl  on  tli(!  csliinatos  of  the  previous  year.  Frecpieully,  a 
ministerial  erisis  has  arisen  under  such  (•in;ums*'.iii(;es,  and 
the  recjuest  of  the  Crown  for  sujiply  in  furtherau(!e  of  an  in- 
t(,'U(led  dissolution,  has  been  met  by  obstruction  or  refusal. 
When  thus  obstrueted  by  the  Assend)ly,  ministers  had  ob- 
tained leave  of  the  governor  to  dissolve  j)arliamt'nt  without 
any  grant  of  sup[)ly.  Onee  the  services  were  jiaid  by  an 
arrangement  witli  the  government  bank  and  without  parlia- 
mentary authority. 

The  objections  to  stu'h  irregular  practices  ar(»  man i lest. 
They  operat(>  injuriously  upon  })ubli(!  moralily  and  upon  the 
c^ftieient  administration  of  public  affairs.  They  e\j)ose  minis- 
ters and  members  of  parliament  alike  to  corrupt  iidluenees. 
They  ofl'er  a  strong  inducement  to  the  house  to  withhold 
sui)j)ly  in  the  endeavour  to  avert  an  expected  dissolution, 
thereby  threatening  the  very  existence  of  parliamentary 
government. 

Anxious  to  sceure  for  the  colony  the  benefit  of  English 
constitutional  practice  in  such  eases,  (lovernor  liobinson 
determined  to  withhold  his  consent  to  any  ap[)lication  by 
ministers  for  authority  to  dissolve  parliament  until  adequate 
provision  had  been  made  to  defray  the  irulispensable  recjuire- 
ments  of  the  public  service  in  the  interval  which  must  elapse 
before  the  new  ])arliament  could  meet;  or,  at  any  rate,  until 
every  effort  to  obtain  sujjply  had  been  first  exhausted. 

Accordint'lv  on  two  occasions  of  the  ocinirrence  of  ministe- 
rial  crises,  in  the  months  of  JMareli  and  August,  in  1<S77,  his 
Excellency  approved  of  the  advice  of  his  ministers  to  dissolve 
parliament,  but  reserved  to  himstJf  the  right  of  reconsideiing 
his  decision  in  the  event  of  their  appeal  to  the  house  for  the 
grant  of  sui)])1y  prelimimiry  to  a  dissolution  being  refused.'' 

Pending  the  recurrence  of  a  similar  emergeiu'y,  (iovernor 
Robinson  was  desirous  of  obtaining  advice  Irom  competent 
constitutional  authority  in  the  mother  country.  lie  therefore 
wrote  to  the  secretary  of  state  for  the  colonic!;,  on  August  20, 
1877,  requesting  to  be  informed  whether  the  giving  of  a 
(lualified  or  conditional  acceptance  to  the  advice  of  his  minis- 
ters to  dissolve    parliament,    was  an   exercise  of   the   royal 

I*  Sen  New  South  Wales  Leg.  Assetu.  Journals,  1876-77,  vol.  i.  pp. 
170,  181-193. 


r.TiB>.T-T»Tifa?rtj:p.'y.i 


COLONIES. 

Fri'(jvientlyi  a 
mis* uncos,  unci 
nuuic  of  nn  in- 
•lion  or  ivrusiil. 
iiistcrs  liiul  (>!)- 
iunu-nt  witliont 
i>r('  ])iii(l  l>y  iiii 
williovit  piirlia- 

s  aro  maniu'st. 
^f  jind  n))on  tl»e 
>y  expose  nnnis- 
•rnpt  inlhuMKH'S. 
use  to  wilhboUl 
eted  dissolution, 
f    piiilianientary 

.nefit  of  Encvlisli 
y^ernor    Robinson 
ly  ai)prK'ation  by 
"it  until  ii(le«iuaie 
pensable  ivtiuire- 
hich  niusl  elapse 
|at  any  rate,  until 
xhausted. 
[•rence  of  niiniste- 
gnst,  in  1S77,  liis 
listers  to  dissolve 
|t  of  reconsidering 
the  house  for  the 
heino-  refused.^ 
rn'cney,  (iovernor 
Voni   eonipetent 
rv.     lie  therefore 
e.;,  on  August  20, 
the   giving;  of   a 
:lvice  of  his  niinis- 
|eise  of   the   ^'^^Y^^^ 

1876-77,  vol.  i.  TP- 


DISCHICTION  IN  TIIK  DISSOLUTION  OF  A  I'AULIAMKNT.      559 

prerogative  in  unison  with  sound  constitutional  jtrinciples 
an<l  witli  the  permanent  interests  of  the  country  ;  oi'  whether, 
on  the  contrary,  a  gov(,'rnor  was  hound  to  give  either  an  ahso- 
lut(^  acceptance  or  an  ahsoiutt!  rcjecition  to  such  advice. 

In  his  reply,  dated  Dee.  lA,  1877,  thi'  secretary  of  stat(^  for 
the  colonies  (  lOarl  (Carnarvon)  expressed  liis  a|)pr(»val  of  (io- 
vernor  Kohinson's  encU'avour  to  cht-ck  the  irregular  jtractices 
of  "  delaying  to  obtain  sup[>iy,  and  of  carrying  on  the  govern- 
ment either  without  supply  or  ui)on  temporary  suppi\  ills," 
and  his  hope  tliat  the  colony  would  bcconu!  alive  •  lo  the 
danger  of  practices  which  are  iiuionsistcut  with  the  true 
s[)irit  of  r('j)resentativ(»  government." 

Considiuiiig  tlu;  constitutional  (luestion   whicih   had    been 
raised  by  the  governor  as  one  of  much  intcu-est  and  impor- 
tance. Lord  (-arnarvon  thought  it  (hisirable  to  consult  Sir  'V.   Opinions 
l"h-skine   May  and   the   Six'aker  of  the    House   of  Commons,   f'."' ''[^ 
The  replies   of  these   eminent   and    experienced    gentlemen,   mid  of 
together  with  the  letter  wherein  the  (picstiou  was  submitted   ^{',!!,'|' ,'|^ "^ 
to  them  for  their  consideration,  were  as  follows: —  sought. 

Mr.  Herhert  to  Sir  T.  Urskine  3Iay,  K.  CM. 

(Confidontial.) 

DoWNINO-STllKET,  Doc.  .3,  1877. 

Sir,  —  I  am  directed  by  the  Karl  of  Carnarvon  to  acijuaint 
you  that  the  governor  of  New  South  Wales  has  asked  for  his 
Lordship's  oi)inion  upon  a  constitutional  ([uestion  which  luis 
a'^en  in  the  colony  under  his  government. 

1.  It  a])pears  that  it  is  not  unusual  for  a  ministry  in  New 
S  (h  Wales  to  be  without  su[)[)ly,  and  that  ministers  are 
content  to  accept  this  i)osilion,  i)rovide(l  they  can  iind  any 
expedient  or  excuse  for  holding  ollic(!  und(U'  it. 

H.  Sir  11.  Robinson  desires  to  be  informed  whether,  if  whilst 
in  this  (!ondition  a  political  crisis  arises  and  ministers  advise 
a  dissolution,  the  governor  is  bound  either  to  acce]>t  or  to 
reject  this  advice  absolutely,  or  whether  he  would  hi'  justified 
in  consenting  to  dissolve  conditionally  upon  tem))orary  supply 
being  tirst  obtained,  if  in  his  n])inion  the  public  interests 
should  ap])(>ar  to  render  such  a  middle  coiu'se  desirable. 

4.  Lord  Carnarvon  desir(>s  me  to  enclose  a  copy  of  the  de- 
spatch in  which  Sir  IT.  Robinson  has  submitted  this  qU(>stion 
for  consideration,  accompanied  by  a  paper  which  he  has  drawn 


il^ 


l:^' 


: 


>h  ii 


I)  1 


-25W 


560       rAllLIAMENTARY  COVERNMENT  IN  THE  COLONIES. 


Sir  Ers- 
kine 

May's  re- 
ply. 


up  containing  a  full  statement  of  the  circumstances  attend- 
ing the  hite  ministerial  crises  in  New  Soutli  \Vak;s,  and  of 
the  action  which  he  has  taken  on  tliese  occasions. 

T).  It  will  be  seen  that  on  the  last  two  occasions  Sir  H.  Ro- 
binson has  accepted  the  advice  of  his  ministers  to  dissolve, 
but  has  reserved  to  himself  the  right  of  reconsidering  his 
decision  if  supply  were  refused. 

0.  Lord  Carnarvon  apprehends  that  from  one  point  of  view 
Sir  II.  Robinson  may  be  considered  to  liave  been  substantiall}' 
right  in  the  course  he  adopted.  It  would  be  the  duty  of 
the  governor  in  a  colony  having  parliamentary  government 
on  the  English  system  to  discountenance  any  course  which 
would  have  even  a  tendency  to  render  the  executive  govern- 
ment independent  of  sup^ny,  but  his  Lordsiiip  also  thinks 
that  it  may  not  unreasonably  be  contended,  as  a  matter  of 
argument,  that  in  point  of  form  it  would  have  been  better  if 
in  his  answer  to  his  ministers  the  governor  had  confined 
himself  to  the  state  of  facts  which  had  then  arisen,  and  had 
not  anticipated  the  future  by  giving  a  hypothetical  decision  ; 
since,  if  he  had  informed  his  ministers  that  inasnnich  as  they 
had  not  got  supply,  he  was  unable  to  grant  them  a  dissolution, 
he  would  not  liave  laid  himself  open  to  the  criticism  that  he 
was  attaching  a  qualification  or  proviso  to  their  advice,  which 
it  may  be  urged  it  was  his  duty  to  accept  or  reject  without 
amendment. 

7.  Ilis  Lordship  would,  however,  be  greatly  obliged  if  you 
would  favour  him  with  your  opinion  upon  the  whole  subject. 

I  am,  «Stc., 

RoBT.  G.  W.  Herbert. 

p.S.  —  Since  the  above  was  written.  Lord  Carnarvon  has 
received  two  further  despatches,  copies  of  which  are  enclosed, 
which  seem  to  render  it  somewhat  doubtful  whether  Sir  H. 
Robinson  can  fairly  be  said  to  have  attached  a  condition  to 
his  acceptance  of  the  advice  of  his  ministers  on  the  question 
of  dissolution. 

Sir  T.  Er shine  May,  K.C.B.,  to  Mr.  Herbert. 

HoiTSE  OF  Commons,  Dec.  G,  1877. 
Sir,  —  I  beg  to  acknowledge  the  receipt  of  your  letter  of 
the  3d  instant,  together  with  the  correspondence  and  papers 
transmitted  to  me  by  direction  of  Lord  Carnarvon,  and  I  will 


1  COLONIES. 

istances  attend- 
i  Walus,  mid  of 

(JUS. 

uoiis  Sir  II.  Ro- 
itevs  to  dissolve, 
•coiisideiing   lii^ 

ne  point  of  view 
ceil  substiintially 

be  the  duty  of 
tavy  goveruuient 
Luy  course  Avhicli 
xecutive  govern- 
Iship  also  thinks 
-d,  as  a  matter  of 
ive  been  better  if 
lor  had  couiined 
111  arisen,  and  had 
thetieal  decision  ; 
iuasmuch  as  they 
hem  a  dissolution, 

cliticism  that  he 
lieir  advice,  which 

or  reject  without 

tly  obliged  if  you 
the  whole  subject. 

W.  Herbekt. 
[)rd  Carnarvon  has 
Ihich  are  enclosed, 
lul  whether  Sir  H. 
Ihed  a  condition  to 
:s  on  the  question 


^  fferhert. 
Immons,  Dec.  0,  1877. 

It  of  your  letter  of 
L deuce  and  papers 
1-narvon,  and  I  will 


DISCRETION  IN  THE  DISSOLUTION  OF  A  PARLIAMENT.      561 

briefl}'^  state  my  views  upon  the  subjects  referred  to,  as  desired 
by  his  Lordsliip. 

1.  The  first  (question  raised  by  these  papers  is,  whether  the 
governor  of  Nev,'  South  Waiefi-  in  giving  a  (qualified  assent 
to  the  advice  of  his  ministers  t  dissolve  parliament,  adopted 
a  constitutional  course.  It  seems  to  me  that  as  the  power  of 
dissolution  rests  absolutely  with  the  governor,  as  representa- 
tive of  the  Crown,  he  is  entitled  to  insist  upon  such  conditions 
as  he  may  deem  necessary  for  the  public  interests  before  he 
proceeds  to  exercise  that  power.  He  was  therefore  warranted 
in  giving  a  qualified  or  conditional  assent  according  to  his 
own  discretion. 

2.  At  the  same  time,  the  form  in  which  his  conditional 
assent  was  given  appears  open  to  some  objections.  His  reso- 
lution being  communicated  by  his  ministers  to  the  parliament, 
it  practically  gave  to  that  body  a  veto  upon  its  own  dissolu- 
tion, and  even  encouraged  it  to  withhold  the  supplies.  And, 
further,  the  governor  took  upon  himself  the  responsibility  of 
granting  or  refusing  a  dissolution,  instead  of  laying  that 
responsibility  upon  his  constitutional  advisers. 

3.  I  think  that  the  course  more  recently  taken  by  the 
governor,  in  regard  to  Sir  John  Robertson's  administration, 
was  entirely  free  from  these  objections,  and  was  in  every 
respect  judicious  and  constitutional,  according  to  the  usage  of 
the  mother  country. 

4.  To  dissolve  parliament  before  provision  has  been  made 
for  the  public  service  is  so  serious  an  evil  that  the  governor 
is  entitled  to  the  highest  credit  for  his  endeavours  to  dis- 
courage such  a  practice,  and  I  have  no  doubt  he  will  continue 
to  discountenance  it  by  every  means  in  his  power.  But  I 
should  venture  to  suggest  that  in  future  the  governor,  after 
discussing  with  his  ministers  all  the  circumstances  under 
which  they  advise  a  dissolution,  including  the  financial  situa- 
tion and  the  probability  of  obtaining  supplies,  should  either 
accept  or  decline  their  advice  without  conditions,  or  should 
defer  his  decision  until  every  effort  had  been  made  to  secure 
the  supplier  or  to  avert  a  dissolution. 

6.  It  is  to  be  hoped  that  the  difficulties  which  have  prisen, 
and  the  great  public  inconvenience  caused  by  ti  e  present 
methods  of  providing  for  the  public  service  in  low  South 
Wales,  will  lead  to  improved  financial  arrangements,  and  to 

3G 


iin 


W 


' '      'ill 


•  i  . 

h      !i 

;■, 

ki 

Reply  of 
Spc  akcr 
of  House 
of  Com- 
mons. 


i 


662       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

the  separation  of  questions  relating  to  the  supplies  from  the 
conflicts  of  political  parties. 

I  am,  &c., 

T.  Erskine  Mat. 

From  the  Speaker  of  the  House  of  Commons  to  the  Earl  of 

Carnarvon. 

Glynde,  Lewes,  Dec.  10,  1877 

Dear  Lord  Carnarvon,  —  I  have  received  your  letter 
of  the  3d  inst.  transmitting  papers  with  reference  to  the 
recent  political  crisis  in  New  South  Wales. 

I  have  also  heard  from  Sir  Erskine  May  that  the  same 
papers  have  been  referred  tc  him  by  your  direction,  and  that 
he  reported  his  opinion  at  length  in  a  letter  of  the  6th  inst., 
a  copy  of  which  he  has  sent  me. 

I  have  carefully  gone  through  the  papers,  and  I  concur 
generally  in  the  substance  of  Sir  Erskine  May's  report  upon 
them. 

I  apprehend  that  there  can  be  no  doubt  of  the  right  of  the 
governor,  acting  in  the  public  interest,  to  qualify  his  accept- 
ance of  ministerial  advice,  although  by  so  doing  he  incurs 
serious  responsibility. 

The  course  taken  by  Sir  Hercules  Robinson  upon  the  recent 
occasion  of  a  political  crisis  seems  to  have  been  thoroughly 
constitutional.  He  declined  to  accept,  unconditionally,  the 
advice  of  his  ministers,  until  he  had  endeavoured  through 
other  political  arrangements  to  carry  on  the  government, 
and  when  his  several  attempts  had  proved  abortive,  he  then 
acquiesced  in  the  advice  originally  tendered  by  his  ministers. 

It  appears  to  me  that  the  governor  and  his  ministers  and 
the  Legislative  Assembly  can  never  be  placed  in  proper  rela- 
tionship so  long  as  the  present  system  prevails  of  deferring 
supply  ;  for  the  governor  ceases  to  be  independent,  the  mi- 
nisters are  hampered  by  the  constant  need  of  temporary 
supply  bills,  and  the  house  has  a  strong  inducement  to  stop 
supply,  in  order  to  prolong  its  own  existence. 

It  is  to  be  hoped  that  the  complications  arising  out  of  the 
several  crises  occurring  recently  in  New  South  Wales  will 
oj)en  the  eyes  of  the  colony  to  the  propriety  of  voting  sup- 
plies more  in  accordance  with  the  practice  of  the  mother 
country.  Believe  me,  &c., 

H.  Brand. 


IE  COLONIES. 

applies  from  the 
Erskine  May. 

18  to  the  Earl  of 

,EWE8,  Dec.  10,  1877 
jeived  your  letter 
reference   to   the 

es. 

ay  that  the  same 
direction,  and  that 
!r  of  the  6th  inst., 

pers,  and  I  concur 
^  May's  report  upon 

of  the  right  of  the 
)  qualify  his  accept- 
so  doing  he  incurs 

jon  upon  the  recent 
k  been  thoroughly 
iiiconditionally,  the 
ideavoured  through 
,n  the   government, 
3d  abortive,  he  then 
■•ed  by  his  ministers, 
nd  his  ministers  and 
llaced  in  proper  rela- 
Ivevails  of  deferring 
udependent,  the  mi- 
nced of  temporary 
inducement  to  stop 

iuce. 

s  arising  out  of  the 
^v  South  Wales  wiU 
priety  of  voting  sup- 
[ctice  of  the  mother 

le,  &c., 

H.  Brand. 


DISCRETION  IN  THE  DISSOLUTION  OF  A  PARLIAMENT.     563 

Subject  to  the  reservations  upon  the  point  of  form  referred 
to  in  Sir  Krskine  May's  letter,  Governor  Robinson's  course 
upon  this  occasion  must  be  approved.  He  is,  undoubtedly, 
entitled  to  the  highest  credit  for  his  judicious  efforts  to  dis- 
courage the  injurious  practices  hitherto  prevalent  in  New 
South  Wales,  in  the  matter  of  supply,  and  to  substitute  for 
the  same  the  constitutional  usage  of  the  Imperial  Parliament. 

In  February,  1878,  the  foregoing  correspondence  was  laid 
upon  the  table  of  the  Legislative  Assembly.*' 

A  further  question,  in  relation  to  the  grant  of  supply  pre- 
vious to  a  dissolution  of  parliament,  arose  in  New  South 
Wales  in  1878.  On  Dec.  3,  the  administration  of  which 
Mr.  Farnell  was  premier  were  defeated  in  the  Legislative 
Assembly  upon  their  [principal  measure,  the  crown-lands  bill, 
the  motion  for  the  second  reading  of  which  was  negatived  by 
a  large  majority. 

The  premier  then  requested  Governor  Robinson  to  permit 
him  to  appeal  to  the  country  by  a  dissolution.  His  Excel- 
lency declined  to  grant  this  request ;  upon  which  the  ministry 
resigned.  The  governor  sent  for  Sir  John  Robertson,  the 
nominal  leader  of  the  opposition,  and  commissioned  him  to 
form  a  new  administration.  He  did  so,  and  submitted  a  list 
of  the  proposed  ministry  for  his  Excellency's  approval. 

At  this  juncture,  Sir  J.  Robertson  requested  the  outgoing 
premier  to  ask  the  Assembly  to  vote  certain  necessary  su})plies, 
"  as  it  had  been  the  practice  for  outgoing  governments  to  do 
for  incoming  governments."  These  supplies  were  meant  to 
defray  certain  services  to  be  incurred  during  the  current  finan- 
cial year;  including  a  sum  of  £50,000  on  behalf  of  an  inter- 
national exhibition  about  to  be  held  in  Sydney,  the  capital  of 
the  colony.  Mr.  Farnell  complied  with  this  request,  and  on 
receipt  of  a  message  from  the  governor,  recommending  these 
appropriations,  the  Assembly  proceeded  to  consider  the  mat- 
ter ill  committee  of  supply.  This  committee  reported  a  reso- 
lution, granting  £86,500  for  certain  specified  services,  but 
nothing  for  the  international  exhibition.  Whereupon,  Sir 
John  Robeiison  and  his  colleagues  at  once  relinquished  their 
attempt  to  form  an  administration. 


Governor 
Robinson 
sustained. 


Further 
question 
iis  to  sup- 
ply before 
dissolu- 
tion. 


•^  Xew  Soutli  Wales  Leg.  Assetn.  Votes  and  Proceed.  1877-78,  vol.  i. 
p.  451. 


■:,     1, 


I* 


564       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


■>    ! 


Dissolu- 
tion re- 
fused by  a 
CaiiiKlian 
lieute- 
lifint-go- 
VLTiior. 


The  governor  notified  Mr.  Farnell  of  this  circumstance, 
and  begged  him  to  withdraw  his  resignation,  and  proceed 
with  the  business  before  parliament.  On  December  17,  Mr. 
Farnell  informed  the  Assembly  that  he  and  his  colleagues 
had  deemed  it  their  duty,  in  the  public  interest,  at  this  criti- 
cal period,  to  comply  with  his  Excellency's  request,  and  to 
resume  their  places. 

The  Assembly,  however,  objected  to  this  arrangement. 
On  the  following  day  they  addressed  the  governor,  intimat- 
ing their  unwillingness  to  proceed  with  the  public  business, 
so  long  as  the  Farnell  ministry  remained  in  office.  Upon 
which  the  ministry  immediately  retired,  and  the  governor 
sent  for  Sir  H  -nry  Parkes,  who  for  the  previous  year  had 
taken  no  active  part  in  the  business  of  parliament,  and  en- 
trusted him  (for  the  third  time)  with  the  formation  of  a  go- 
vernment. Sir  John  Robertson  gave  his  support  to  Sir  Henry, 
which  enabled  him  to  form  a  strong  administration. 

Agreeably  to  former  precedent,  Mr.  Farnell  again  invited 
the  house  to  vote  the  supplies  which  the  new  ministry  con- 
sidered would  be  required  before  they  could  meet  parliament. 
The  standing  orders  were  suspended  for  that  purpose,  and 
upon  the  receipt  of  the  customary  message  from  the  governor, 
recommending  a  vote  of  credit  to  the  necessary  amount,  the 
sum  of  .£120,000  was  granted  in  committee  of  suppl}'- ;  and 
no  further  obstacle  was  interposed  by  the  Assembly  to  the 
progress  of  public  business.'* 

The  last  precedent  to  be  cited  in  illustration  of  the 
powers  of  a  governor,  in  the  exercise  of  the  prerogative 
of  dissolution,  is  one  that  occurred  in  the  province  of 
Quebec,  upon  the  defeat,  in  the  Legislative  Assembly, 
of  the  Joly  administration.  It  is  peculiarly  instructive 
as  aifording  an  example  of  the  discharge  —  by  a  lieu- 
tenant-governor appointed  by  the  dominion  govern- 
ment of  Canada  —  towards  a  provincial  legislature  of 
which  he  formed  a  component  part,  of  the  same  con- 
stitutional powers,  uuder  responsible  government,  as 


m 


^  New  South  Wales  Votes  and  Proceed.  Dec.  3,  to  Dec.  20,  1878. 
And  private  information  from  the  colony. 


HE  COLONIES. 

his  circumstance, 
ion,  and  proceed 
December  IT,  Mr. 
,nd  his  colleagues 
,erest,  at  this  criti- 
's  request,  and  to 

this   arrangement, 
governor,  intimat- 
le  public  business, 
I  in  office.     Upon 
and  the  governor 
previous  year  had 
3arliament,  and  en- 
formation  of  a  go- 
ipport  to  Sir  Henry, 
listration. 

Tuell  again  invited 
.  new  ministry  con- 
Id  meet  parliament. 
'  that  purpose,  and 
;  from  the  governor, 
cessary  amount,  the 
;tee  of  supply ;  and 
le  Assembly  to  the 

lustration  of  the 
of  the  prerogative 
the  province  of 
islative  Assembly, 
uliarly  instructive 
large  —  by  a  lieu- 
dominion  govern- 
icial  legislature  of 

of  the  same  con- 


fl ', 


[1 


rnment,  as 


e  gove 


c.  3,  to  Dec.  20,  1878. 


DISCRETION  IN  THE  DISSOLUTION  OF  A  PARLIAMENT.     565 

those  which  pertain,  under  similar  conditions,  to  the 
governor  of  a  colony  appointed  directly  by  the  Crown. 

The  Joly  administration  of  whose  history  some  account  has  Asked  for 
been  given  in  a  former  chapter®  were  never  able  to  command  \y,^\- 
a  majority  in  the  Legislative  Council.     Recently  that  body  Quebec. 
had  evinced  their  hostility  to  the  ministry  by  stopping  the 
supplies.    A  dead-lock  ensued.    At  length  the  small  majority 
by  which  ministers  were  sustained  in  the  Assembly  after  the 
general  election  was  transformed  into  a  majority  against  them 
by  the  secession  of  certain  of  their  former  supporters,  when 
an  adverse  vote  against  the  ministry  was  carried  by  a  majority 
of  six. 

Under  these  circumstances,  M.  Joly  wrote  to  the  lieutenant- 
governor,  requesting  permission  to  appeal  to  the  constituen- 
cies by  a  dissolution  of  the  legislature.  The  result  of  his 
application  was  afterwards  communicated  to  the  Legislative 
Assembly,  as  follows :  — 

Hon.  Mr.  Joly  announced  that  he  had  the  authorization  of 
the  lieutenant-governor  to  state  that,  when  he  had  acquainted 
him  with  the  result  of  the  vote  in  the  house,  he  had  at  the 
same  time  advised  him  to  dissolve  the  house  in  view  of  imme- 
diate general  elections.  He  had  received  this  afternoon  a  reply 
from  his  Honour,  the  lieutenant-governor,  acknowledging 
receipt  of  his  request,  but,  for  certain  reasons  contained  in  his 
letter,  refusing  to  grant  it.  He  had  therefore  considered  it 
to  be  his  duty  to  proceed  immediately  to  Government  House 
and  to  tender  to  the  lieutenant-governor  his  resignation  and 
that  of  his  colleagues,  thanking  his  Honour  at  the  same  time 
for  the  courtesy  he  had  shown  him.  The  resignation  had 
been  accepted,  and  he  had  been  authorized  by  the  lieutenant- 
governor  to  communicate  the  correspondence  in  question  to 
the  house.     He  then  proceeded  to  read  as  follows :  — 

Quebec,  Oct.  30,  1879. 
To  IT  IS  Honour 

The  Lieutexant-Governor  of  the  Province  op  Querec. 

Sir,  —  I  have  the  honour  to  inform  you  that  the  cabinet 
has  been  defeated  by  a  majority  of  six  votes  upon  a  question 
which  my  colleagues  and  myself  consider  as  a  vote  of  nou- 
confidence. 

•  See  ante,  p.  400. 


566       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


i 


I  > 


Rof".scd 
by  Liou- 
teiiaiit- 
(lovornor 
Rubitaille. 


This  vote  is  the  result  of  the  unconstitutional  action  of  the 
Legislative  Council,  and  I  do  not  consider  it  as  expressing  the 
opinion  of  the  majority  of  the  people  of  the  province  of  Quebec. 

It  is  my  duty  to  apply  to  your  Honour  for  a  dissolution  in 
view  of  an  immediate  appeal  to  the  people. 

I  firmly  believe  that  the  result  of  an  appeal  to  the  people 
which  I  now  ask  for  would  be  to  give  to  this  government  a 
much  larger  majijrity  than  it  has  liitherto  possessed. 

Allow  me  to  add  that  in  my  opinion  the  present  circum- 
stances make  it  very  advisable  that  an  immediate  occasion 
should  be  afforded  to  the  electorate  of  the  province  to  pro- 
nounce on  the  constitutional  question  arising  out  of  the  action 
of  the  Legislative  Council  in  connection  with  the  supplies. 
I  have  the  honour  to  remain, 
Your  very  obedient  servant, 

(Signed)     H.  G.  Joly. 

Government  House,  Quebec,  Oct.  30,  187$). 

To   THE   IIONOURADLE 

11.  G.  Joly,  Pkemier  of  the  Province  of  Quebec. 

The  lieutenant-governor  has  the  honour  to  acknowledge 
the  receipt  of  the  request  made  to  him  by  the  executive 
council,  of  which  you  are  the  head,  to  dissolve  the  present 
parliament.  The  lieutenant-governor  does  not  overlook  the 
embarrassment  of  the  present  situation,  and  he  understands 
how  important  it  is  for  him  to  be  doubly  prudent  and  impar- 
tial in  the  midst  of  violent  contentions  which  have  divided 
public  opinion  for  some  time  psist. 

The  lieutenant-governor  desires  at  once  to  call  the  atten- 
tion of  his  ministers  to  the  difference  which  exists  between 
their  position  and  his  on  a  question  such  as  that  which  is 
now  at  stake. 

It  must  not  be  forgotten  that  the  privilege  of  dissolving 
parliament  is  one  of  the  most  valued  prerogatives  of  tlie 
sovereign,  and  that  it  is  the  right  and  the  duty  of  the  repre- 
sentative of  the  Crown  to  control  its  exercise.  Now  the  lieu- 
tenant-governor and  the  cabinet  cannot  look  at  the  subject 
of  this  ])rerogative  from  the  same  point  of  view. 

The  first  care  of  a  government,  under  the  political  system 
which  governs  us,  is  to  administer  the  affairs  of  the  country 
for  the  best  undoubtedly,  but  in  all  cases  by  means  of  a  party  ; 
while  Avith  the  representative  of  the  Crown  parties  count  for 
nothing. 


HE  COLONIES. 

onal  action  of  the 

as  expressing  the 

:ovince  of  Quebec. 

or  a  dissolution  in 

peal  to  the  people 
his  government  a 
ossessed. 

e  present  circum- 
nmediate  occasion 
e  province  to  pro- 
iff  out  of  the  action 
th  the  supplies. 


led)     n.  G.  JoLY. 

iuEUEC,  Oct.  30, 1879. 

K  Quebec. 

u-  to  acknowledge 
by  the  executive 
lissolve  the  present 
s  not  overlook  the 
md  he  understands 
)rudent  and  impar- 
vhich  have  divided 

to  call  the  atten- 
lich  exists  between 
!h  as  that  which  is 

ilege  of  dissolving 
prerogatives  of   the 

duty  of  the  repre- 
cise.  Now  the  lieu- 
look  at  the  subject 

view, 
the  political  system 
fairs  of  the  country 
jy  means  of  a  party  ; 
wn  parties  count  for 


DISCRETION  IN  THE  DISSOLUTION  OF  A  PARLIAMENT.     567 

Although  the  lieutenant-governor  is  always  disposed  to 
lend  the  sanction  of  his  authority  to  legislative  or  administra- 
tive acts  which  are  evidently  above  all  blame  and  which  every 
good  administration  might  consider  useful  or  necessary,  he  is 
strictly  bound  to  inquire  whether  the  extraordinary  exercise 
of  the  royal  prerogatives  with  which  lie  is  invested  is  de- 
manded by  the  greater  good  of  the  province,  as  he  is  respon- 
sible towards  the  Crown  for  all  political  troubles  and  for 
all  financial  damnge  from  which  he  might  save  the  province 
and  from  which  he  does  not  save  it. 

When  the  lieutenant-governor  received  your  request,  what 
first  struck  him  was  the  fact  that  since  your  assuming  power 
you  had  already  asked  the  Crown  for  a  dissolution  and  ob- 
tained it.  Two  dissolutions  for  the  same  cabinet !  The 
extraordinary  exercise  of  the  most  valued  of  the  royal  prero- 
gatives granted  twice  to  the  same  administration  within  an 
interval  of  a  few  months !  such  was  the  first  idea  which  pre- 
sented itself  to  the  mind  of  the  lieutenant-governor.  Imme- 
diately after  your  entry  into  ofiice,  you  asked  the  Crown  to 
dissolve  parliament,  and  you  had  a  general  election.  You 
issued  from  the  electoral  struggle  with  a  majority,  according 
to  you  ;  with  a  minority,  according  to  your  opponents.  But  in 
point  of  fact  you  were  enabled  to  govern  at  first  with  the  vote 
of  the  speaker  only,  and  subsequently  with  a  majority  vary- 
ing from  four  to  two  votes  ;  and,  in  fine,  you  have  announced 
to-day  to  the  representative  of  the  Crown  that  you  find  your- 
self in  the  house,  resulting  from  the  elections  asked  for  by 
yourself,  in  a  minority  of  six  votes,  and  you  claim  a  new  disso- 
lution. 

Is  it  in  the  public  interest  that  the  province  should  he 
subjected  so  frequently  to  general  elections?  Is  it  in  accord 
with  the  spirit  of  the  constitution  that  parliament  should  be 
dissolved  so  often?  Is  the  renewal  at  such  brief  intervals 
of  the  popular  representation  of  a  nature  to  ensure  the  sta- 
bility and  the  good  working  of  our  political  institutions?  To 
all  these  questions  the  lieutenant-governor  deems  it  liis  duty 
to  answer,  —  No.  The  wise  authority  awarded  to  us  by  the 
constitution  which  we  enjoy  has  decided  that  general  elec- 
tions for  this  province  should  take  place  every  four  years, 
and  this  period  is  not  so  long  that  it  should  be  still  further 
shortened  without   reasons   of  extraordinary  gravity.     The 


\'l\ 


li;    ,: 


568       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


Lioute- 
iiant-go- 
vcrnor  Ro- 
bitaillc's 
k'tter  to 
M.  Joly. 


prime  minister  understands  the  deep  and  prolonged  agitation 
into  which  a  general  election  plunges  society  at  large,  as 
well  as  the  divisions  and  the  demoralization  which  follow  it. 
Apart  from  thise  political  and  social  considerations,  there  are 
the  financial  considerations.  A  general  election,  and  the  ses- 
sion which  a  dissolution  at  this  moment  would  render  inevi- 
table, would  cost  the  country  a  hundred  thousand  dollars  ;  and, 
in  the  financial  situation  in  which  we  are  placed,  this  is  an 
expenditure  which  deserves  to  be  earnestly  considered. 

However,  if  there  were  reasons  sufficiently  grave  and  seri- 
ous to  transcend  all  other  considerations,  the  lieutenant-go- 
vernor admits  that  a  dissolution  might  be  had  recourse  to. 
But  do  similar  reasons  exist  in  the  present  case?  A  disso- 
lution can  have  but  one  object,  and  that  is  to  maintain  in 
power  certain  men  or  certain  parties.  There  would  not  be 
in  this  a  sufficient  compensation  for  the  sacrifices  which  the 
country  would  be  called  upon  to  make.  The  lieutenant-go- 
vernor is  quite  prepared  to  admit  that  the  views  of  his  minis- 
ters are  of  the  highest  character,  and  that  the  struggles  which 
they  have  led  have  been  inspired  by  the  best  motives ;  but, 
when  it  becomes  necessary  to  divide  duties  and  responsibili- 
ties, each  one  must  look  upon  the  matter  from  his  stand-point 
and  perform  the  task  which  his  position  allots  him.  Under 
the  present  circumstances,  one  of  the  reasons  which  might 
be  brought  forward  in  support  of  an  appeal  to  the  people 
would  be  the  necessity  of  restoring  harmony  between  the 
two  branches  of  the  legislature.  But  this  harmony  is  very 
nearly  restored ;  and,  if  there  exists  any  other  method  than 
dissolution  to  complete  the  reconciliation  of  the  Council  with 
the  Assembly,  the  lieutenant-governor  considers  that  it  is  his 
duty  to  make  use  of  it.  The  question  for  the  lieutenant- 
governor  to  decide  is  not  whether  the  government  is  to  be- 
come the  victim  of  what  his  advisers  call  an  irresponsible 
body.  So  long  as  his  ministers  possessed  the  confidence  of 
the  popular  branch  of  the  legislature,  he  considered  them  as 
the  representatives  of  the  will  of  the  people  and  maintained 
them  in  their  position  contrary  to  the  wish  expressed  by  the 
Legislative  Council.  But  now  the  majority  which  the  go- 
vernment had  in  the  Legislative  Assembly  has  become  a 
minority.  The  two  branches  of  the  legislature  agree  upon 
one  of  the  most  important  points  j  viz.,  a  change  of  govern- 


[E  COLONIES. 

ilonged  agitation 
iety  at  large,  as 
which  follow  it. 
rations,  there  are 
tion,  and  the  ses- 
uld  render  ine vi- 
and dollars ;  and, 
jlaced,  this  is  an 
3onsidered. 
iy  grave  and  seri- 
he  lieutenant-go- 
had  recourse  to. 
D  case  ?     A  disso- 
is  to  maintain  in 
ere  would  not  be 
orifices  which  the 
?he  lieutenant-go- 
iews  of  his  minis- 
le  struggles  which 
est  motives;  but, 
,  and  responsibili- 
»m  his  stand-point 
lots  him.     Under 
;ons  which  might 
eal  to  the  people 
ony  between  the 
harmony  is  very 
ler  method  than 
the  Council  with 
iders  that  it  is  his 
)r  the  lieutenant- 
■rnment  is  to  be- 
an irresponsible 
the  confidence  of 
onsidered  them  as 
e  and  maintained 
expressed  by  the 
ty  which  the  go- 
ily  has  become  a 
ature  agree  upon 
hange  of  govern- 


DISCRETION  IN  TIIE  DISSOLUTION  OF  A  PAIILLA.MENT.     569 

ment,  and  it  cannot  be  alleged  that  recourse  must  be  had  to 
extraordinary  means  to  terminate  a  conflict  which  is  in  a  fair 
way  to  be  terminated  by  ordinary  means.  The  necessity  of 
restoring  harmony  in  parliament  could  not,  therefore,  just!  y 
a  dissolution  after  the  recent  vote  of  the  Legislative  Assem- 
bly, a  vote  which  you  consider  as  one  of  want  of  confidence. 
But  you  say  you  do  not  think  this  vote  expresses  the  opinion 
of  the  people  of  this  province.  It  is,  however,  the  vote  of 
the  house  of  your  choice,  of  the  house  elected  under  your 
auspices,  under  exceptionally  favourable  circumstanccvS,  after 
a  dissolution  asked  for  by  you.  And  you  would  solicit  the 
people  to  renew  an  assembly  which  you  yourself  caused  to 
be  elected  ^  ghteen  months  ago.  The  lieutenant-governor, 
taking  into  account  these  particular  circumstances,  cannot 
understand  upon  what  basis  rests  the  conviction  which  you 
manifest  with  respect  to  the  result  of  new  general  elections. 
In  fine  you  declare  that,  in  your  opinion,  the  late  events  re- 
quire that  an  immediate  opportunity  should  be  afforded  to 
the  people  to  pronounce  upon  the  constitutional  question 
raised  by  the  action  of  the  Council  in  regard  to  the  supplies. 
The  lieutenant-governor  sees  no  necessity  of  appealing  to  the 
people  on  this  point.  The  absolute  right  of  the  Council  —  at 
least  such  is  the  impression  of  the  lieutenant-governor  —  is 
contested  by  no  one,  so  that  there  only  remains  to  be  dis- 
cussed the  question  of  opportuneness.  Now  the  representa- 
tives of  the  people,  elected  scarcely  eighteen  months  ago, 
expressed  their  opinion  upon  this  question  before  the  adjourn- 
ment of  the  house  ;  and  the  fact  that  since  that  adjournment 
they  have  voted  want  of  confidence  in  the  administration  does 
not  reverse  their  previous  verdict  on  the  question  at  issue, 
and  is  not  sufficient  of  itself  to  warrant  a  dissolution.  It 
appears  to  the  lieutenant-governor  that  there  could  be  no 
more  impolitic  act  than  to  revive  by  an  altogether  extraordi- 
nary proceeding  a  difficulty  settled ;  and  an  appeal  to  the 
people  just  now  could  bear  no  other  meaning. 

For  all  these  reasons,  deeply  penetrated  with  the  feelings 
of  his  responsibility  towards  the  Crown  which  he  represents 
and  towards  the  people  of  this  province,  the  lieutenant-gover- 
nor does  not  deem  it  his  duty  to  make  the  use  you  ask  him 
of  the  royal  prerogative,  having  for  its  object  a  dissolution 
of  the  parliament. 

Theodore  Robitaille. 


X 


I J 


rh 


''C 


f   ;  1' 


4 


Joly  mi- 
nistry re- 
sign. 


Discre- 
tion of  a 
governor 
in  grant- 
ing or  re- 
fusing a 
dissolu- 
tion. 


670     PARLIAMENTARY  GOVERNMENT  IN  TIIE  COLONIES. 

Upon  receipt  of  this  excellent  memorandum,  the  Joly  admi- 
nistration resigned.  The  lieutenant-governor  then  sent  for 
Mr.  J.  A.  Chapleavi,  the  leader  of  the  opposition  in  the  Le- 
gislative Assembly,  and  commissioned  him  to  form  a  new  mi- 
nistry. He  succeeded  in  this  undertaking.  The  Legislative 
Council  at  once  passed  the  supply  bill,  and  the  provincial 
legislature  was  immediately  prorogued.  Jn  his  speech  upon 
this  occasion,  the  lieutenant-governor  was  able  to  express  his 
congratulations  upon  the  restoration  of  harmony  between  the 
Legislative  Council  and  the  Legislative  Assembly,  and  his 
hope  that  a  good  understanding  between  the  two  branches 
of  the  legislature  would  continue  to  prevail. 


From  the  foregoing  precedents,  we  may  deduce  cer- 
tain general  principles  in  regard  to  the  exercise  by  a 
colonial  governor  of  the  prerogative  of  dissolving  a  colo- 
nial parliament  or  provincial  legislature.  These  deduc- 
tions, however,  should  be  taken  in  connection  with  the 
principles  already  formulated  at  the  beginning  of  this 
section,  and  which  are  primarily  applicable  to  the  sove- 
reign in  a  parliamentary  government. 

As  the  representative  of  the  Crown  in  the  dominion, 
colony,  or  province,  over  which  he  is  commissioned  to 
preside,  the  power  of  dissolution  rests  absolutely  and 
exclusively  with  the  governor  or  lieutenant-governor 
for  the  time  being.  He  is  personally  responsible  to  the 
Crown  for  the  lawful  exercise  of  this  prerogative,  but 
he  is  likewise  bound  to  take  into  account  the  welfare 
of  the  people,  being  unable  to  divest  himself  of  a  grave 
moral  responsibility  towards  the  colony  he  is  commis- 
sioned to  govern. 

Whilst  this  prerogative,  as  all  others  in  our  constitu- 
tional system,  can  only  be  administered  upon  the  advice 
of  counsellors  prepared  to  assume  full  responsibility  for 
the  governor's  decision,  the  governor  must  be  himself 
the  judge  of  the  necessity  for  a  dissolution.  The 
"  constitutional  discretion  "  of  the  governor  should  be 


3  COLONIES. 

m,  the  Joly  admi- 
or  then  sent  for 
iition  in  the  Le- 
o  form  a  new  mi- 
The  Legislative 
id  the  provincial 
his  speech  upon 
ble  to  express  his 
lony  between  the 
ssembly,  and  his 
.he  two  branches 


nay  deduc^  eer- 
ie exercise  by  a 
lissolving  a  colo- 
5.  These  deduc- 
nection  with  the 
eginning  of  this 
ble  to  the  sove- 

in  the  dominion, 
commissioned  to 

absolutely  and 
tenant-governor 
esponsible  to  the 
prerogative,  but 
)unt  the  welfare 
mself  of  a  grave 

he  is  commis- 

in  our  constitu- 
upon  the  advice 
responsibility  for 
must  be  himsolf 
issolution.  The 
ernor  should  be 


DISCRETION  m  THE  DISSOLUTION  OF  A  PARLIAMENT.     671 

invoked  in  respect  to  every  case  wherein  a  dissolution 
may  be  advised  or  requested  by  his  ministers  ;  and  his 
judgment  ought  not  to  be  fettered,  or  his  discretion 
disputed,  by  inferences  drawn  from  previous  precedent, 
when  he  decides  that  a  proposed  dissolution  is  unneces- 
sary or  undesirable. 

It  is  the  duty  of  a  governor  to  consider  the  question 
of  a  dissolution  of  the  parliament  or  legislature  solely  in 
reference  to  the  general  interests  of  the  people  and  not 
from  a  party  standpoint.  He  is  under  no  obligation  to 
sustain  the  party  In  power  if  he  believes  that  the  acces- 
sion to  office  of  their  opponents  would  be  more  beneficial 
to  the  public  at  large.  He  is  therefore  justified  in  with- 
holding a  dissolution  requested  by  his  ministers,  when 
he  is  of  opinion  that  it  was  asked  for  merely  to 
strengthen  a  particular  party,  and  not  with  a  view  to 
ascertain  the  public  sentiment  upon  disputed  questions 
of  public  policy.  These  considerations  would  always 
warrant  a  governor  in  withholding  his  consent  to  a 
dissolution  applied  for,  under  such  circumstances,  by 
a  ministry  that  had  been  condemned  by  a  vote  of  the 
popular  chamber.  If  he  believes  that  a  strong  and  effi- 
cient administration  could  be  formed  that  would  com- 
mand the  confidence  of  an  existing  Assembly,  he  is 
free  to  make  trial  thereof,  instead  of  complying  with 
the  request  of  his  ministers  to  grant  them  a  dissolution 
as  an  alternative  to  their  enforced  resignation  of  office. 

On  the  other  hand,  ho  may  at  his  discretion  grant  a 
dissolution  to  a  ministry  defeated  in  parliament  and 
desirous  of  appealing  to  the  constituencies,  notwith- 
standing that  one  or  both  branches  of  the  legislature 
should  remonstrate  against  the  proposed  appeal,  if  only 
he  is  persuaded  that  it  would  be  for  the  public  advan- 
tage that  the  appeal  should  be  allowed. 

It  is  not  expedient  that  the  Crown  should  be  required 
to  decide  beforehand  upon  any  theoretical  or  hypotheti- 


!     1 1 


■I  I 


rl 


!'. 


1  roropa- 
tive  of  dis- 
solution. 


i        ■! 


572     PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

cal  question  not  requiring  to  be  immediately  deter- 
mined/ Nevertheless,  a  governor  is  entitled  to  stipulate 
upon  whatever  conditions  he  may  deem  essential  for 
the  promotion  of  the  public  interests  before  he  pro- 
ceeds to  exercise  the  power  of  dissolution.  He  may, 
therefore,  defer  his  final  decision  upon  an  application 
for  a  dissolution  of  parliament  until  he  has  ascertained 
whether  certain  proposed  conditions  have  been  com- 
plied with,  or  whether  it  may  be  necessary  that  he 
should  agree  to  modify  the  same. 

When  ministers  advise  a  dissolution  on  the  ground 
of  disputes  between  the  two  houses  of  parliament,  it 
behooves  a  governor  to  be  cautious  in  acceding  to  such 
a  request.  It  is  not  the  duty  of  a  governor  to  take 
sides  with  one  branch  of  the  legislature  against  the 
other,  or  to  criticise  the  action  of  either  house,  in 
party  conflicts.  The  two  houses  are  presumably  the 
best  judges  of  the  propriety  of  their  own  proceedings. 
It  is  only  when  disputes  between  them  transcend  the 
lawful  bounds  of  parliamentary  warfare,  and  seem  to 
be  irreconcilable  by  any  other  means,  that  a  governor 
is  justified  in  the  attempt  to  invoke  the  aid  of  the 
people  to  restore  harmony  by  dissolving  the  popular 
chamber. 

In  according  to  a  ministry  defeated  in  parliament  — 
or  recently  appointed  to  office  in  the  face  of  an  adverse 
majority  —  the  alternative  of  dissolution  instead  of 
resignation,  a  governor  may,  and  ordinarily  should, 
insist  that  ministers  should  meet  the  new  parliament 
at  the  earliest  possible  period,  for  the  purpose  of  de- 
termining the  question  whether  or  not  they  possess  the 
confidence  of  the  newly  elected  Assembly.*^ 


'  Governor  Manners  Sutton  of 
Victoria,  refused,  in  18G8,  to 
pledge  himself,  beforehand,  to  grant 
a  dissolution,  under  certain  liypo- 
tlietical  conditions,  to  gentlemen 
with  whom  he  was  negotiating  for 


the  formation  of  a  ministry:  and 
accordingly  the  negotiations  failed. 
(See  ante,  p.  117.)  See  also  Gover- 
nor Head's  decision,  to  the  same  ef- 
fect, in  ISm.  (See  ante,  p.  ,533.) 
e  But  under  particular  circum- 


COLONIES. 

diately  deter- 
ed  to  stipulate 
L  essential  for 
efore  he  pro- 
on.  He  may, 
an  application 
las  ascertained 
ve  been  com- 
essary  that  he 

3n  the  ground 
parliament,  it 
jceding  to  such 
vernor  to  take 
ire  against  the 
ther  house,  in 
)resumably  the 
m  proceedings, 
transcend  the 
3,  and  seem  to 
that  a  governor 
the  aid  of  the 
g  the  popular 


DISCRETION  m  TIIE  DISSOLUTION  OF  A  PARLIAMENT.     573 

Finally,  if  an  existing  administration  be  not  pre- 
pared to  accept  the  governor's  decision  in  regard  to  a 
proposed  dissolution,  and  to  assume  responsibility  for 
the  same,  they  are  bound  to  resign  office  and  give 
place  to  other  ministers,  who  are  willing  to  facilitate  — 
and  to  become  responsible  to  parliament  and  to  the 
country  for  —  the  intended  exercise  of  the  royal  pre- 
rogative. 


1 1 


stances  tlie  governor  may  see  fit  to    new  parliament.     See  an  example 
approve  of  delay  in  couveuiug  the    mentioned,  ante,  p.  287. 


parliament  — 
je  of  an  adverse 
ion  instead  of 
inarily  should, 
new  parliament 
purpose  of  de- 
ley  possess  the 


of  a  ministry:  and 
negotiations  failed. 
7.)  See  also  Gover- 
ision,  to  the  same  ef- 
(See  ante,  p.  533.) 
particular  circum- 


III 


;;■ 


S  I     ii' 


SirT?.Lyt- 

ton'sL'ttiT 
to  Sir  G. 
Boweii. 


CHAPTER    V. 

POSITION   AND   FUNCTIONS    OF   A   COLONIAL   GOVERNOR 

REVIEWED. 

During  the  brief  but  brilliant  career  of  the  late  Sir 
Edward  Bulwer-Lytton,  as  her  Majesty's  secretary  of 
state  for  the  colonies,  he  was  required  in  1859  to  make 
choice  of  a  capable  person  to  serve  as  the  first  governor 
of  the  new  colon}^  of  Queensland,  which  in  that  year 
was  set  apart,  as  a  separate  government,  out  of  New 
South  Wales.  He  selected  for  this  responsible  office 
Sir  George  Bo  wen,  the  present  governor  of  the 
island  of  Mauritius,  —  a  gentleman  with  whom  he  had 
no  personal  acquaintance,  but  of  whose  ability  and 
fitness  for  the  post  the  reputation  he  had  already 
acquired  as  government  secretary  in  the  Ionian  islands 
afforded  sufficient  proof. 

In  tendering  to  Sir  George  Bowen  this  promotion.  Sir 
E.  Bulwer-Lytton  addressed  him  a  letter,  professedly  con- 
taining mere  "  desultory  hints  "  for  his  guidance  in  his 
new  appointment,  but  to  which  Sir  George  afterwards 
referred  as  an  admirable  compendium  of  the  duties  of 
a  colonial  governor,  —  to  the  study  of  which  he  at- 
tributed in  no  slifj-ht  deo-ree  whatever  measure  of  sue- 
cess  had  attended  upon  him  as  governor  of  Queensland 
and  afterwards  of  New  Zealand,  in  both  of  which  colo- 
nies he  proved  himself  to  be  a  very  able  and  popular 
administrator.* 

'  After  servitifif  eight  years  in  Sir  George  Bowen  was  promoted  in 
Queensland,  with  great  distinction,     1868  to  New  Zealand,  and  in  1873 


'  *!■ mi 


AL   GOVERNOR 

of  the  late  Sir 
f's  secretary  of 
n  1859  to  make 
le  first  governor 
eh  in  that  year 
jnt,  out  of  New 
3sponsible  office 
Dvernor    of    the 
h  whom  he  had 
lose  abiUty  and 
he   had   aheady 
e  Ionian  islands 

is  promotion,  Sir 
professedly  con- 
guidance  in  his 
orge  afterwards 
of  the  duties  of 
of  which  he  at- 
measure  of  suc- 
3r  of  Queensland 
;h  of  which  colo- 
ble  and  popular 


3wen  was  promoted  in 
Zealand,  and  in  1873 


vcriiurs. 


POSITION  AND  FUNCTIONS  OF  A  GOVERNOR  REVIEWED.    575 

A  few  passages  from  this  letter  may  be  quoted,  as  Good  ad- 
they  express  ideas  which  may  be  prolitably  pondered  i'o','ii,ii"^i"" 
by  uU  colonial  governors  :  — 

Remember  that  tlie  first  care  of  a  governor  in  a  free  colony 
is  to  shun  the  reproach  of  being  a  party  man.  (Jivo  all  par- 
ties, and  all  the  ministries  formed,  the  fairest  play. 

Mark  and  stndy  the  idiosyncrasies  of  the  community: 
every  cominnnity  has  some  peculiar  to  itself.  Then,  in  your 
public  addresses,  appeal  to  those  which  are  the  noblest :  the 
noblest  are  always  the  most  universal  and  the  most  durable. 
They  are  peculiar  to  no  party. 

As  soon  as  possible,  exert  all  energy  and  persuasion  to 
induce  the  colonists  to  see  to  their  self-defence  internally.  .  .  . 
A  colony  that  is  once  accustomed  to  depend  on  imperial  sol- 
diers for  aid  against  riots,  &c.,  never  grows  up  into  vigorous 
manhood. 

Do  your  best  always  to  keep  up  the  pride  in  the  mother 
country.  .  .  .  Sustain  it  by  showing  the  store  set  on  in- 
tegrity, honour,  and  civilized  manners  ;  not  by  preferences  of 
birth,  which  belong  to  old  countries. 

As  you  will  have  a  free  press,  you  will  have  some  papers 
that  may  be  abusive.  Never  be  thin-skinned  about  these : 
laugh  them  off.  Be  pointedly  courteous  to  all  editors  and 
writers,  —  acknowledging  socially  their  craft  and  its  im- 
portance. The  more  you  treat  people  as  gentlemen,  the 
more  "  they  will  behave  as  such." 

After  all,  men  are  governed  as  much  by  the  heart  as  by 
the  head.  Evident  sympathy  in  the  progress  of  the  colony  ; 
traits  of  kindness,  generosity,  devoted  energy,  where  re- 
quired for  the  public  weal  ;  a  pure  exercise  of  patronage  ; 
an  utter  absence  of  vindictiveness  or  spite  ;  the  fairness  that 
belongs  to  magnanimity,  —  these  are  the  qualities  that  make 
governors  powerful,  while  men  merely  sharp  and  clever  may 
be  weak  and  detested. 

But  there  is  one  rule   ^  hich  I  find  pretty  universal  in 


—  in    a  highly  complimentary  de-  vice.     Lord  Lytton's  Memoir,  and 
spatch  from  the  Secretary  of  State  Speeches  of  Sir  E.  Bulwer-Lytton, 

—  to  the  frovernment  of  Victoria,  a  vol.  i.  p.  cxxi,  n. ;  Ileaton's  Austra- 
position  which  has  l)een  termed  tlie  lian  Dictionary  of  Dates,  p.  22. 

"  Blue  Ribbon"  of  the  colonial ser- 


Ulr 


Mcrivale 
on  a  go- 
vernor's 
functions. 


576       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

colonies.  The  governor  who  is  the  least  huff^^  and  who  is 
most  careful  not  to  overgovern,  is  the  one  who  has  the  most 
authority.  Enforce  civility  upon  all  minor  officials.  Courtesy 
is  a  duty  public  servants  owe  to  the  humblest  member  of  the 
public. 

Sir  E.  Bulwer-Lytton  adds,  to  these  wise  precepts  of 
political  morality,  earnest  advice  to  the  governor  upon 
practical  matters,  —  such  as  the  need  of  mastering 
thoroughly  the  details  of  public  qucb^ions  ;  of  being 
watchful  over  "  the  paramount  object  of  finance  and 
the  administration  of  revenue ;  "  and  of  striving  to 
convert  local  jealousies  between  adjacent  colonies  into 
wholesome  emulation.^ 

These  were  the  ideas  of  a  high-minded  English 
statesman,  anxious  to  build  up  the  colonial  empire  of 
Great  Britain  upon  the  stable  foundations  which  had 
secured  honour  and  renown  to  the  parent  state.  He 
recognized  therein  the  authority  and  influence  apper- 
taining to  the  office  of  governor  and  its  appropriate 
functions  in  elevating  the  tone  of  public  sentiment, 
and  stimulating  colonial  statesmen  to  the  loftiest  aims 
in  their  efforts  to  promote  the  public  good. 

With  a  similar  object,  Mr.  Herman  Merivale,  who  was 
permanent  under-secretary  of  state  for  the  colonies  dur- 
ing twelve  eventful  years  in  colonial  annals  (1847- 
59),  in  an  edition  of  his  vaku.ble  "  Lectures  on  Coloni- 
zation and  Colonies,"  published  in  1861,  thus  comments 
upon  "  the  very  critical  and  peculiar  functions  "  of  a 
colonial  governor,  under  "  responsible  government :  "  — 

"  He  constitutes  the  only  political  link  connecting 
the  colony  with  the  mother  country.  So  far  as  regards 
the  internal  administration  of  his  government,  he  is 
merely  a  constitutional  sovereign  acting  through  his 
advisers ;  interfering  with  their  policy  or  their  patro- 


b  Lord  Lytton's  Memoir  and  Speeches,  vol.  i.  pp.  cxxi-cxxiv. 


E  COLONIES. 

iffy,  and  who  is 
10  has  the  most 
icials.  Courtesy 
t  member  of  the 

ise  precepts  of 
governor  upon 
I  of  mastering 
ions ;  of  being 
of  finance  and 
of  striving  to 
mt  colonies  into 

ninded   English 
onial  empire  of 
tions  which  had 
rent  state.     He 
influence  apper- 
its  appropriate 
ublic  sentiment, 
the  loftiest  aims 
od. 
lerivale,  who  was 
,he  colonies  dur- 
annals  (1847- 
tures  on  Coloni- 
,  thus  comments 
functions  "  of  a 
lovernment :     — 
link  connecting 
jo  far  as  regards 
vernment,  he  is 
fng  through  his 
or  their  patro- 

Ipp.  cxxi-cxxiv. 


POSITION  AND  FUNCTIONS  OF  A  GOVERNOR  REVIEWED.    577 

nage,  if  at  all,  only  as  a  friend  and  impartial  councillor. 
But  whenever  any  question  is  agitntod  touching  the 
interests  tf  the  mother  country  —  such,  for  instance,  as 
the  imposition  of  customs  duties,  or  the  public  defence 
—  his  functions  as  an  independent  officer  are  tailed  at 
once  into  play.  lie  must  see  that  the  motlier  country 
receives  no  detriment.  In  this  duty,  he  cannot  count 
on  aid  from  his  advisers :  they  will  consult  the  interests 
either  of  the  colony  or  of  their  own  popularity ;  he  may 
often  have  to  act  in  opposition  to  them,  either  by  inter- 
posing his  veto  on  enactments  or  by  referring  those  en- 
actments for  the  decision  of  the  home  government.  But 
for  these  purposes  the  constitution  furnishes  him  with 
no  public  officers  to  assist  him  in  council  or  execution, 
or  to  share  his  responsibility.  The  home  government 
looks  to  him  alone."  '^ 

Again, "  under  responsible  government "  [a  governor] 
"  becomes  the  image,  in  little,  of  a  constitutional  king, 
introducing  measures  to  the  legislature,  conducting  the 
executive,  distributing  patronage,  in  name  only,  while 
all  these  functions  are  in  reality  performed  by  his  coun- 
cillors. And  it  is  a  common  supposition  that  his  office 
is  consequently  become  one  of  parade  ond  sentiment 
only.  There  cannot  be  a  greater  error.  Tbe  functions 
of  a  colonial  governor  under  responsible  government 
are  (occasionally)  arduous  and  difficult  in  the  extreme. 
Even  in  the  domestic  politics  of  the  colony,  his  influ- 
ence as  a  mediator  between  extreme  parties  and  con- 
troller of  extreme  resolutions,  as  an  independent  and 
dispassionate  adviser,  is  far  from  inconsiderable,  how- 
ever cautiously  it  may  be  exercised.  But  the  really 
onerous  part  of  his  dut}^  consists  in  watching  that  por- 
tion of  colonial  politics  which  touches  on  the  connection 
with  the  mother  country.     Here  he  has  to  reconcile,  as 


TWff 


«  Morivalo,    Lorturps    dolivered     C(il(M\ization, etc.,  new  ed.  enlarged, 
before  the  University  of  Oxford,  on     18(31,  p.  049. 

37 


I 


Sir  W. 
Fox  on  a 
governor's 
position. 


578       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

well  as  he  can,  his  double  function  as  governor  responsi- 
ble to  the  Crown,  and  as  a  constitutional  head  of  an 
executive  controlled  by  his  advisers.  He  has  to  watch 
and  control,  as  best  he  may,  those  attempted  infringe- 
ments of  the  recognized  principles  of  the  connection 
which  carelessness  or  ignorance,  or  deliberate  intention, 
or  mere  love  of  popularity,  may,  from  time  to  time, 
originate.  And  this  duty,  of  peculiar  nicety,  he  must 
perform  alone.  .  .  His  responsible  ministers  may  (and 
probably  will)  entertain  views  quite  different  from  his 
own.  And  the  temptation  to  surround  himself  with  a 
camarilla  of  special  advisers,  distinct  from  these  mini- 
sters, is  one  wliich  a  governor  must  carefully  resist.  It 
may,  therefore,  be  readily  inferred,  that  to  execute  the 
office  well  requires  no  common  abilities,  and  I  must 
add  that  the  occasion  has  called  forth  these  abilities."  '' 

A  further  testimony  has  been  lately  borne  to  the  im- 
portant functions  fulfilled  by  a  modern  constitutional 
governor,  by  a  colonial  statesman  of  much  local  expe- 
rience in  public  affairs.  Mr.  (now  Sir  William)  Fox, 
formerly  premier  in  New  Zealand,  in  an  address  before 
the  Royal  Colonial  Institute,  on  May  23,  1876,  ex- 
pressed himself  on  this  subject  as  follows :  — 

"  The  position  of  governors  in  self-governing  colonies 
is  now  analogous  to  that  of  her  Majesty  in  this  country. 
The  business  of  governing  is  done  by  the  ministers,  and 
it  is  only  in  extreme  cases,  where  a  governor  n\ny  dis- 
miss his  ministers  (subject  to  the  control  of  parliament), 
or  cases  where  imperial  rights  are  involved,  and  per- 
haps in  the  prerogative  of  mercy,  in  cases  of  life  and 
death,  that  the  governor  can  act  independently  of  his 
ministers.  Still,  the  governor  is  not  reduced  to  a  mere 
dispenser  of  viceregal  hospitalities,  which  I  am  bound 
to  say  they  do  dispense  with  a  very  liberal  hand.     If  a 


•1  Merivale,  Lectures  on  Colonization,  etc.  p.  060. 


IE  COLONIES. 

/ernor  responsi- 
nical  head  of  an 
le  has  to  watch 
mpted  infringe- 

the  connection 
lerate  intention, 
1  time  to  time, 
nicety,  he  must 
listers  may  (and 
ifferent  from  his 
i  himself  with  a 
Vom  these  mini- 
re  fully  resist.    It 
Lt  to  execute  the 
ties,  and  I  must 
these  abilities."  '- 

borne  to  the  im- 
rn  constitutional 
uch  local  expe- 
ir  William)  Fox, 

n  address  before 
^y  23,  1876,  ex- 

ws :  — 

•verning  colonies 
ly  in  this  country. 
:he  miuisters,  and 
•overnor  mny  dis- 
[ol  of  parliament), 
evolved,  and  per- 
cases  of  life  and 
ipendently  of  his 
leduced  to  a  mere 
hich  I  am  bound 
beral  hand.     If  a 

Itc.  p.  060. 


POSITION  AND  FUNCTIONS  OF  A  GOVERNOR  REVIEWED.     570 

governor  is  an  educated  man,  has  common  sense,  and 
is  familiar  with  political  principles  and  precedents,  he 
may  be  of  much  use  in  advising  with  his  ministers, 
though  it  would  be  highly  improper  for  him  to  take  a 
side  in  party  politics,  or  engage  in  political  intrigues. 
It  is  his  duty  also  to  set  a  high  social  example,  and  to 
interest  himself  not  only  in  the  general  progress  of  the 
colony,  but,  as  far  as  possible,  in  the  personal  welfare 
jmd  prosperity  of  the  colonists  engaged  in  the  great 
battle  of  colonial  life.  And  they  generally  do  exhibit 
much  sympathy  in  these  matters.  They  make  periodi- 
cal "  progresses  "  through  the  colony  over  which  they 
rule,  and  are  hospitably  entertained  in  the  centres  of 
population."^ 

British  statesmen  of  various  shades  of  political  opinion 
have  used  similar  language,  more  emphatically  ex- 
j^ressed,  in  reference  to  the  position  occupied  by  con- 
stitutional governors  under  the  British  Crown. 

Thus,  Lord  Elgin,  in  words  already   quoted,  dwells  Lord  ei- 
pointedly  upon  the  weight  and  influence  attributable  to  g.'lvin.ors 
this  office,and  upon  the  beneficial  results  which  a  gover-  "^^^' 
nor  can  produce  in  the  arena  of  colonial  politics,  without 
deviating  from  the  strict  line  of  his  official  duty.^     Else- 
where, adverting  to  the  altered  position  of  a  governor, 
as  the   imperial  executive  gradually  withdraws  from 
direct  interference  in  colonial  concerns,  he  says,  "  the 
office  of  governor  tends  to  become  —  in  the  most  em- 
phatic sense  of  the  term  —  the  link  which  connects  the 
mother  country  and  the  colony,  and  his  influence  the 
means  by  which  harmony  of  action  between  the  local 
and  imperial  authorities  is  to  be  preserved."     From  his 
independent  and  impartial  position,  the  opinion  of  a 


"  Royal   Col.  Inst,   rroccedings,  tlie  Duke  of  Xewcastle's  coniinents 

vol.  vii.  p.  ll'yJ.  thereon,  anic,  pp.  (JO-liS  ;  iuul  the 

*  Soe  (utle,  p.  5f).     See   also    Sir  Duke  of  Argyll's  remarks,  in  llau- 

George  Buvvon's  observitious,  ^\■ilh  sard's  Deb.  vol.  oxci.  p.  2UUl. 


I  . 


580       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


Governor- 
general  of 
Canada. 


governor  must  needs  have  "  great  weight  in  the  colo- 
nial councils ;  while  he  is  free  to  constitute  himself,  in 
an  especial  manner,  the  patron  of  those  larger  and 
higher  interests,  —  as  of  education,  and  of  moral  and 
material  progress  in  all  its  branches,  —  which,  unlike 
the  contests  of  party,  unite,  instead  of  dividing,  the 
members  of  the  body-politic."  *=' 

The  Duke  of  Buckingham,  when  secretary  of  state 
for  the  colonies,  in  1868,  thus  wrote,  in  a  despatch  con- 
cerning the  office  of  governor-general  of  Canada.  He 
"  is  the  representative  of  the  queen,  and  the  highest 
authority  in  a  dominion  vast  in  extent,  occupied  by 
several  millions  of  people,  comprising  within  itself  vari- 
ous provinces  recently  brought  together  which  can 
only  be  knit  into  a  mature  and  lasting  whole  by  wise 
and  conciliatory  administration.  Nor  is  the  position 
insulated.  The  governor-general  is  continually  called 
upon  to  act  on  questions  affecting  international  rela- 
tions with  the  United  States.  The  person  who  dis- 
charges such  exalted  functions  ought  to  possess  not 
only  sound  judgment  and  wide  experience,  but  also  an 
established  public  reputation.  He  should  be  qualified 
both  to  exercise  a  moderating  influence  among  the  dif- 
ferent provinces  composing  the  union,  and  also  to  bear 
weight  in  his  relations  with  the  British  minister  at 
Washington  and  with  the  authorities  of  the  great  neigh- 
boring republic."  '' 


K  Tlieso  sagacious  words  form  the 
closinj?  senteiu-e  of  the  hist  oHieial 
des[)atcli  Mritteii  by  the  Earl  of  El- 
gin, on  relintinishiiii^  the  ji^overn- 
ment  of  C.uiada.  Tliey  were  dated 
fi'oni  Quebec,  on  Dec.  IH,  18")!. 
Walrond's  Letters  of  Lord  Elgin, 
pp.  ]2(;-128. 

^  'J'his  despatch  was  written  to 
explain  the  reasons  why  her  Majes- 
ty's government  felt  it  to  be  their 
duty  to  advise  the  queen  to  I'efuse 
her  assent  to  a  bill  passed  by  the 


dominion  parliament  to  reduce  the 
salary  of  the  oovernor-geiieral,  which 
had  been  fixed  by  the  IJritish  Noitli 
America  Act,  18(i7,  sec.  105,  al 
£10,000  sterling  (Canada  Sess.  Pa- 
pers, 1869,  no.  7'-\).  For  the  sala- 
ries now  payable  to  all  colonial  go- 
vernors, see  Col.  Oflice  List,  187!i, 
p.  17.  For  the  Governors'  I'ension 
Acts  (28  and  29  Vict.  c.  ll.'i,  and  ;3.') 
and  8(5  Vict.  c.  20),  see  i/ii</.  p.  2',i-]. 
See  also  corresjiondence  concerning 
the   heavy  expense.^   entailed  upon 


wimmm 


•HE  COLONIES. 


ight  in  the  colo- 
itute  himself,  in 
hose  Uirger  and 
id  of  moral  and 
—  which,  unlike 
of  dividing,  the 

ecretary  of  state 
1  a  despatch  con- 
[  of  Canada.     He 
and  the  highest 
ent,  occupied  by 
within  itself  vari- 
ether  which   can 
ng  whole  by  wise 
,r  is  the  position 
continually  called 
nternational  rela- 

person  who  dis- 
it  to  possess  not 
ience,  but  also  an 
jhould  be  qualified 
ce  among  the  dif- 

,  and  also  to  bear 
Iritish  minister  at 
tf  the  great  neigh- 


larliament  to  reduce  the 
I ooveniov-geneial,  whicli 
ied  by  tlie  British  Norlli 
fct,    i8(i7,    sec.    105,    al 
rliiio;  (Canada  l^ess.  1  a- 
no'  7;')).     I'oi"  t-*'^  "'^'''^' 
Ivable  to  all  colonial  go- 
Col.  Onice  List,   187'J, 
,  the  r.ovornoi-s'  Pension 
Id  'jn  Vict.  c.  1  i:i,  and  ;3.) 
I.  c.  29),  see  ihi'l-  V-  -.'^•5- 
[i-respondence  concerninj,' 
[expenses  entailed  upon 


POSITION  AND  FUNCTIONS  OF  A  GOVERNOR  REVIEWED.     581 

Upon  the  expiration  of  Lord  Du'^'rin's  term  of  ser- 
vice as  governor-general  of  Canada,  in  1878,  a  joint 
address  was  presented  to  his  Excellency  by  both  houses 
of  the  dominion  parliament,  which  bore  testimony  to 
the  ripe  wisdom,  experience,  and  eminent  abilities  dis- 
played by  that  accomplished  statesman  in  his  adminis- 
tration of  the  government  of  Canada.  Special  mention 
was  made  in  this  address  of  the  zeal  and  devotion  mani- 
fested by  Earl  Dufferin  upon  all  occasions  wherein  it 
had  been  in  his  power  to  promote  Canadian  interests ; 
to  his  efforts  and  liberality  in  fostering  literature,  art, 
and  the  industrial  pursuits ;  and  to  the  beneficial  results 
which  had  attended  his  visits  to  each  of  Lue  provinces 
and  territories  of  the  dominion,  for  the  purpose  of 
familiarizing  himself  with  their  distinctive  resources, 
and  with  the  character  of  the  inhabitants ;  and  in  avail- 
ing himself  of  every  opportunity  to  enlarge  on  these 
topics  in  eloquent  speecl^js,  which  had  attracted  atten- 
tion throughout  the  empire,  and  contributed  largely  to 
an  increased  knowledge  of  Canada,  its  present  condition 
and  future  prospects.  Sir  M.  Hicks-Beach,  her  Ma- 
jesty's colonial  secretary,  in  a  despatch  to  the  Earl 
of  Dufferin,  dated  Oct.  15,  1878,  congratulating  his 
Lordship  upon  the  estimation  in  which  he  was  held  by 
all  classes  in  Canada,  conveyed  the  queen's  commands 
signifying  the  high  appreciation  entertained  by  her 
Majesty  of  the  great  ability  and  judgment  with  which 
he  had  discharged  the  duties  of  governor-general.  The 
secretary  of  state  added  an  expression,  on  the  part  of 
her  Majesty's  government,  of  their  conviction  that  the 
admirable  manner  wherein  his  Lordship  had  fulfilled  the 
duties  of  the  queen's  representative  had  done  much  to 
strengthen  and  deepen  in  the  hearts  of  the  Canadian 


Iif)nl 
1  )utTtrin 
as  a  con- 
stitutional 
govtrnor. 


m 


i 


the  governor    of   Victoria    in    dis-    sendily  Papers,   1877-78,  vol.   lii, 
(•liaising  the  duties  of  official  hospi-     no.   101. 
tality  in  that  colony.     Victoria  As- 


voriior  s 
office. 


582      PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

people  that  spirit  of  loyalty  and  devotion  to  the  British 
Crown  and  empire,  of  which  there  had  been  so  many 
gratifying  indications.' 

Our  object  in  referring  to  thes  pleasing  reminis- 
cences of  the  administration  of  Lord  Dafferin  in  Cana- 
da is  not  merely  to  record  the  high  estimation  in  which 
his  Lordship  was  held  —  alike  by  the  Crown,  the  parlia- 
ment, and  the  people  —  as  a  constitutional  governor, 
but  likewise  to  exemplify,  by  such  a  conspicuous  and 
distinguished  example,  the  appropriate  field  of  action 
for  a  representative  of  the  sovereign  in  a  self-governing 
community. 
r.onofits  ^^^^  while  a  constitutional  governor  suitably  abstains 

mcniinp     fj-Q^^  dircct  interference  with  the   ordinary  course  of 

trom  a  go-  ,  ^ 

public  business,  he  has  numerous  opportunities  of  con- 
ferring substantial  benefits  upon  the  colony  over  which 
he  presides,  and  of  strengthening  the  tie  which  con- 
nects it  with  the  mother  land. 

It  is  his  especial  duty  to  acquaint  himself,  by  per- 
sonal observation,  with  the  country  and  its  capabilities, 
and  to  ascertain  by  individual  intercourse  the  condition 
of  its  inhabitants,  and  the  quality,  aim,  and  efficiency  of 
its  various  local  institutions.  In  his  official  tours  for 
this  purpose  a  governor  would  naturally  be  called  upon 
to  make  frequent  response  to  loyal  address  of  respect 
and  welcome.  In  such  utterances,  in  the  delivery  of 
speeches  upon  public  occasions  of  a  non-political  charac 
ter,  and  in  his  despatches  to  the  secretary  of  state,  a 
governor  is  at  liberty,  from  time  to  time,  to  direct  at- 
tention, with  the  authority  and  impartiality  becoming 
his  office,  to  numerous  questions  of  public  concern,  as, 
for  example,  the  peculiar  advantages  presented  by  the 
colony  as  a  field  for  emigration  or  for  the  profitable 
employment  of  capital.     He  can  likewise  promote  — 


•  Canada  Commons  Journals,  April  11,  1878;  Dominion  OfRcial  Ga- 
ette,  Nov.  9,  1878. 


nMM 


IE  COLONIES. 

m  to  the  British 
1  been  so  many 

leasing  reminis- 
lafferin  in  Cana- 
imation  in  which 
rown,  the  parlia- 
tional  governor, 
conspicuous  and 
3  field  of  action 
a  self-governing 

suitably  abstains 
dinary  course  of 
)rtunities  of  con- 
)lony  over  which 
3  tie  which  con- 

himself,  by  per- 
d  its  capabilities, 
rse  the  condition 
and  efficiency  of 
official  tours  for 
ly  be  called  upon 
ddrcss  of  respect 

the  delivery  of 
n-political  charac 
retary  of  state,  a 
ime,  to  direct  at- 
rtiality  becoming 
ublic  concern,  as, 
presented  by  the 
or  the  profitable 

wise  promote  — 

Domiuion  Official  Ga- 


POSITION  AND  FUNCTIONS  OF  A  GOVERNOR  REVIEWED.     583 

by  timely  words  of  encouragement,  of  warning,  or  of 
judicious  counsel  —  the  varied  and  complex  interests  of 
a  rising,  industrious,  and  progressive  couuuunity  ;  point- 
ing out,  in  a  paternal  spirit,  the  pitfalls  and  temptations 
to  be  avoided,  as  well  as  the  rewards  to  be  anticipated 
from  perseverance  in  well-doing,  and  from  the  cultiva- 
tion of  harmony  and  mutual  forbearance  in  every  rela- 
tion of  life. J 

Bearing  in  mind  that  the  governor  in  a  British  pro- 
vince is  a  connecting  link  between  the  distant  portions 
of  a  wide-spread  empire  and  the  august  person  of  its 
monarch,  who  is  everywhere  honoured  and  beloved, 
and  that  his  office  is  a  symbol  of  the  unity  which  pre- 
vails between  the  scattered  members  of  a  vast  and 
powerfid  nationality,  a  constitutional  governor  is  in 
duty  bound  to  foster,  within  his  own  sphere,  loyalty  and 
devotion  to  the  sovereign  and  attachment  to  the  insti- 
tutions of  monarchy,  —  which  secure  to  the  people  the 
inestimable  benefits  of  liberty,  protection,  and  ad- 
vancement, in  a  higher  degree  than  is  afforded  by  any 
other  form  of  government  upon  earth. 

Furthermore,  the  exalted  position  occupied  by  a 
governor  under  the  British  Crown  enables  him,  after 
the  pattern  exhibited  by  the  queen,  —  in  the  order 
and  decorum  of  her  royal  court,  and  in  the  exercise 
of  her  great  pr^rsonal  intluence,*^  —  to  encourage  pub- 
lic  and   privaii   morality,  and   to   enforce  the   para- 


i  For  unequalled  specimens  of 
public  addresses  by  a  colonial  go- 
vernor, upon  every  iniaji^inable  sub- 
ject appropriate  to  his  position,  and 
fraught  with  instruction  and  admo- 
nition to  all  classes  and  conditions 
of  the  people,  it  is  scarcely  neces- 
sary to  refer  to  the  narratives  of 
Lord  Dufferin'Si  administration  in 
Canada;  written  both  by  Mr.  Wil- 
liam Leggo,  and  by  Mr.  Charles 
Stewart.     These  works  each   con- 


tain verbatim  reports  of  his  Excel- 
lency's elocpient,  and  instructive 
speeches.  Admirable  addresses,  up- 
on various  questi(Uis  of  public  con- 
cern, disconnecteil  with  i)arty  poli- 
tics hr  'e  been  deliv<M-e(l  by  other 
colonial  governors  in  Australia,  and 
elsewhere,  with  very  beneficial  ef- 
fect. 

"  See  Todd,  Pari.  Govt.  vol.  i.  p. 
203. 


i 


584       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 


I     I 


Political 
functions 
of  ii  go- 
vernor. 


A  local 
constitu- 
tional so- 


moimt  obligations  of  religion  amongst  the  people,  so 
far  as  he  justly  may,  in  a  country  which  possesses  no 
established  church,  and  where  all  Christian  denomina- 
tions are  upon  a  footing  of  equality. 

These  considerations,  however,  while  they  cannot  be 
overlooked  or  overestimated  in  reviewing  the  benefi- 
cial effects  of  monarchical  rule,  as  administered  by  a 
constitutional  governor  under  the  British  Crown,  are 
foreign  to  the  special  scope  of  this  treatise.  It  has 
been  the  aim  of  the  present  writer  to  define,  with  the 
utmost  possible  precision  and  impartiality,  the  actual 
position  and  functions  of  a  governor  in  his  political 
relations,  so  far  as  the  same  are  capable  of  being  de- 
termined by  reference  to  authoritative  documents  and 
other  unimpeachable  sources  of  knowledge. 

In  the  admirable  summaries  of  the  duties  of  a  go- 
vernor, quoted  at  the  commencement  of  this  chapter 
from  the  writings  or  speeches  of  men  of  reputation  and 
experience  in  public  affairs,  we  find  but  slight  allusion 
to  his  essentially  political  functions.  This  subject, 
however,  is  of  vital  importance  ;  and  it  is  with  a  view 
to  supply  this  deficiency  that  the  present  work  has 
been  undertaken. 

The  general  conclusions  arrived  at  in  the  preceding 
chapters,  after  a  careful  investigation  of  the  several 
questions  therein  discussed,  may  be  briefly  epitomized 
as  follows :  — 

1.  The  position  of  a  governor  in  a  colony  possessing 
representative  institutions,  with  "  responsible  govern- 
ment," is  that  of  a  local  constitutional  sovereign. 
Whatever  other  powers  may  be  conferred  upon  him 
by  the  law  of  the  particular  colony,  he  is,  by  virtue  oi 
his  commission  and  instructions  from  the  Crown,  the 
representative  of  the  queen  in  this  part  of  her  do- 
minions, who  is  herself  the  source  of  all  executive  au- 
thority therein.     He  has  his  responsible  ministers,  who 


COLONIES. 

lie  people,  so 
L  possesses  no 
iaii  denomina- 

hey  cannot  be 
nfX  the  bcneii- 
inistered  by  a 
iish  Crown,  are 
jatise.  It  has 
cfine,  with  the 
ity,  the  actual 
m  his  political 
ie  of  being  de- 
documents  and 

[ge. 

duties  of  a  go- 
of this  chapter 
'  reputation  and 
slight  allusion 
This   subject, 
is  with  a  view 
sent  work  has 

the  preceding 

of  the  several 

ietly  epitomized 


\ 


llony  possessmg 
lonsible  govern- 
)nal  sovereign, 
srrcd  upon  him 
is,  by  virtue  oi 
the  Crown,  the 
)art  of  her  do- 
ll executive  au- 
ministcrs,  wdio 


X 


POSITION  AND  FUNCTIONS  OF  A  GOVERNOR  REVIEWED.     585 

advise  him  upon  all  acts  of  executive  government  and 
in  all  legislative  matters.'  The  identity  of  aim  and  the 
mutual  co-operation  in  endeavour  which  must  invaria- 
bly subsist  between  the  representative  of  the  Crown 
and  his  constitutional  advisers  is  a  pledge  and  assur- 
ance to  the  people  that  they  enjoy  the  full  benefit  and 
security  which  the  monarchical  element  is  capable  of 
affording  in  our  colonial  system,  combined  with  the 
advantages  of  ministerial  control  and  responsibility.'" 

2.  A  constitutional  governor  should  never  be  held 
accountable,  within  the  sphere  of  his  government,  for 

the  policy  or  conduct  of  public  aflairs.  This  responsi-  iiis  ro- 
bility  devolves  unreservedly  upon  his  ministers,  who  Siuy! 
share  with  him  in  the  functions  of  sovereignty  which 
he  exercises  under  his  commission  from  the  Crown,  on 
condition  that  they  assume  full  responsibility  for  the 
same  before  the  local  parliament  and  the  constituent 
body.  The  governor  is  personally  responsible  only 
to  the  supreme  power  from  whence  his  authority 
is  derived. 

3.  The  position  of  a  constitutional  governor  towards 
those  over  whom  he  is  set  as  the  representative  of 
the  sovereign,  and  especially  in  relation  to  his  minis- 
ters, is  one  of  strict  neutrality.  He  must  manifest  no  No  parti- 
bias  towards  any  political  party,  but  on  the  contrary 
be  ready  to  make  himself  a  mediator  and  a  moderator 
between  the  influential  of  all  parties ;  and  he  must  be 
uniformly  actuated  solely  by  a  desire  to  promote  the 
general  welfare  of  the  province  or  dependency  of  the 
empire  committed  to  his  charge. 

4.  A  constitutional  governor  is  bound  to  receive  as  iiispoUti 
his  advisers  and  ministers  the  acknowledged  leaders  of 
that  party  in  the  state  which  is  able  for  the  time  being 


r 


sail. 


cal  advis- 
ers. 


'  Sir  T.  Erskine  May,  in  Com-  «"  See  Walrond,  Letters  of  Lord 
mons  Papers,  1879,  no.  130,  pp.  Elfjiu,  pp.  1^0-121.  Aud  aee  anlCf 
6,7.  p.  16. 


586       PARLIAMENTARY  GOVERNxMENT  IN  THE  COLONIES. 


Wlioso 

advk'o 

slioukl 

ordinarily 

prevail. 


His  intelli- 
gent con- 
sent al- 
ways ne- 
cessary. 


Ilis  re- 
served 
right  of 
disappro- 
val. 


to  command  the  confidence  of  the  popular  assembly ; 
or,  in  the  last  resort,  of  the  people,  as  expressed  on 
appeal  through  their  representatives  in  the  local  par- 
liament. And  it  is  his  duty  to  cordially  advise  and 
co-operate  with  his  ministers  in  all  their  elibrts  for  the 
public  good. 

5.  In  furtherance  of  the  principle  of  local  self- 
government  and  of  the  administration  of  the  execu- 
tive authority  in  harmony  with  the  legislative  bodies, 
it  is  ordinarily  the  duty  of  a  constitutional  governor  to 
accept  the  advice  of  his  ministers  for  the  time  being  in 
regard  to  the  general  policy  and  conduct  of  public 
affairs;  in  the  selection  of  persons  to  fdl  subordinate 
ofhces  in  the  public  service  ;  and  in  the  determination 
of  all  questions  that  do  not  require  to  be  disposed  of 
in  conformity  with  special  instructions  from  the  impe- 
rial government. 

6.  Ir.  order  to  enable  a  constitutional  governor  to 
fulfil  intelligently  and  efficiently  the  charge  intrusted 
to  him  by  the  Crown,  he  is  bound  to  direct  —  as,  by  his 
commission  and  instructions,  he  is  authorized  to  re- 
quire —  that  the  fullest  information  shall  be  afforded 
to  him  by  his  ministers  upon  every  matter  which  at  any 
time  shall  be  submitted  for  his  approval ;  and  that  no 
policy  shall  be  carried  out  or  acts  of  executive  au- 
thority performed  by  his  ministers  in  the  name  of  the 
Crown,  unless  the  same  shall  have  previously  received 
his  sanction. 

7.  While,  as  a  general  rule,  a  constitutional  governor 
would  natuiYuly  defer  to  the  advice  of  his  ministers,  so 
long  as  they  continue  to  possess  the  confidence  of  the 
popular  chamber,  and  are  able  to  administer  public 
affairs  in  accordance  with  the  well-understood  wishes 
of  the  people,  as  expressed  through  their  representa- 
tives, if  at  any  time  he  should  see  fit  to  doubt  the  wis- 
dom or  the  legality  of  advice   tendered   to  him,  or 


IE  COLONIES. 

ular  assembly ; 
J  expressed  on 

the  local  par- 
illy  advise  and 

eiibrts  for  the 

of  local  self- 
of  the  execu- 
jislative  bodies, 
nal  governor  to 
e  time  being  in 
duct  of  public 
fill  subordinate 
J  determination 
I  be  disposed  of 
from  the  impe- 

lal  governor  to 
liarge  intrusted 
^ect  —  as,  by  his 
ithorized  to  re- 
iiall  be  alTorded 

er  which  at  any 
il ;  and  that  no 

'  executive  au- 
he  name  of  the 
viously  received 

itional  governor 
lis  ministers,  so 
)nfidence  of  the 
Iminister  public 
derstood  wishes 
heir  representa- 
0  doubt  the  wis- 
red  to  him,  or 


POSITION  AND  FUNCTIONS  OF  A  GOVERNOR  REVIEWED.    587 

should  question  the  motives  which  have  actuated  his 
advisers  on  any  particular  occasion,  —  so  as  to  lead  him 
to  the  conviction  that  their  advice  had  been  prompted 
by  corrupt,  partisan,  or  other  unworthy  motives,  and 
not  by  a  regard  to  the  honour  of  the  Crown  or  the  wel- 
fare and  advancement  of  the  community  at  large, — 
the  governor  is  entitled  to  have  recourse  to  the  power 
reserved  to  him  in  the  royal  instructions,  and  to  with- 
hold his  assent  from  such  advice.  Under  these  cir- 
cumstances, he  would  suitably  endeavour,  in  the  first 
instance,  by  suggestion  or  remonstrance,  to  induce  his  Or  rcmon- 
ministers  to  modify  or  abandon  a  policy  or  proceeding  ''^'■'^"^^■ 
which  he  was  unable  to  approve.  But,  if  his  remon- 
strances should  prove  unavailing,  the  governor  is  com- 
petent to  require  the  resignation  of  his  ministers  or  to 
dismiss  them  from  office,  and  to  call  to  his  councils  a 
new  administration. 

8.  The  circumstances  under  which  a  governor  would  And  of 
deem  it  discreet  and  advisable  to  have  recourse  to  his  his'llij!"^ 
reserved  right  of  dismissing  a  ministry  must  be  deter-  "inters. 
mined  by  himself  with  due  regard  to  the  gravity  of  the 
proceeding,  and  to  the  responsibility  it  would   entail 

upon  him  to  the  Crown.    But  this  prerogative  right  can  >■ 

only  be  constitutionally  exercised  on  grounds  of  public 
policy,  and  for  reasons  which  are  capable  of  being  ex- 
plained and  justified  by  an  incoming  administration  to 
the  local  Assembly,  as  well  as  by  the  governor  himself 
to  the  imperial  authorities. 

9.  Upon  a  change  of  ministry,  it  is  essential  that  the  Xcw  mi- 
gentlemen  who  may  be  invited  by  the  governor  to  form  "pSbie 
a  new  administration  shall  be  unreservedly  informed  forhja 
hy  him  of  the  circumstances  which  led  to  the  resigna- 
tion or  dismissal  of  their  predecessors  in  office;  nnd 

that  they  shall  be  willing  to  accept  entire  responsibility 
to  the  local  parliament  for  any  acts  of  the  governor 
which  have  been  instrumental  in  occasioning  the  resig- 


588       rARIJAMKNTARY  GOVERNMENT  IN  THE  COLONIES. 


tivo  of 

dissulu- 

tion. 


nation  or  oflccting  tlio  dismissal  of  the  outgoing  minis- 
try. For  it  is  an  undoubtcMl  principle  of  Knglisli  law, 
that  no  prerogative  of  the  Crown  can  be  constitution- 
ally exercised  unless  some  minister  of  state  is  ready  to 
assume  responsibility  for  tlie  same.  Hence,  tlie  au- 
thority itself  renuiins  inviolate,  however  the  propriety 
of  its  exercise  may  be  questioned,  or  its  use  condemned 
The  authority  of  the  Crown,  in  the  hands  of  the  (pieen's 
representative,  must  invariably  be  respected  ;  and  no 
one  subordinate  to  the  governor  should  attribute  to  him 
personally  any  act  of  misgovernment,  his  ministers 
being  always  answerable  for  his  acts  to  the  local  parlia- 
ment and  to  the  constituent  body. 

10.  A  constitutional  governor  is  personally  responsi- 
ble to  the  Crown  for  his  exercise  of  the  prerogative 
right  of  dissolving  parliament;  and  he  is  bound  to 
have  regard  to  the  general  condition  and  welfare  of  the 
country,  and  not  merely  to  the  advice  of  his  ministers, 
in  granting  or  refusing  a  dissolution.  And,  should  he 
deem  it  advisable  to  insist  upon  the  dissolution  of  an 
existing  parliament  contrary  to  the  advice  of  his  minis- 
ters, he  is  not  debarred  from  taking  steps  to  give  e fleet 
to  his  decision,  because  his  ministers  for  the  time  being 
are  sustained  by  a  majority  of  the  local  assembly  ;  al- 
though such  an  act,  on  the  part  of  the  governor, 
would  necessarily  involve  their  resignation  of  office. 
But  no  governor  has  a  constitutional  right  to  proceed 
to  dissolve  parliament  under  such  circumstances,  unless 
he  can  first  obtain  the  services  of  other  advisers,  who 
are  willing  to  become  responsible  for  the  act;  and 
unless  he  has  reasonable  grounds  for  believing  that  an 
appeal  to  the  constituent  body  would  result  in  an  ap- 
proval by  the  new  Assembly  of  the  policy  which,  in 
his  judgmv  nt,  rendered  it  necessary  that  a  dissolution 
of  parliament  should  take  place. 

11.  In  the  ultimate  determination  of  all  questions 


E  COLONIES. 

utgoing  minis- 
r  Kn.ulish  law, 
»u  coiistitiition- 
ate  is  ri'suly  to 
lenoe,  the  au- 
•  the  pioprioty 
ISO  coiKk'innod 
s  of  the  ((iieeii's 
►eeted  ;  and  no 
ittribute  to  hhn 
,  liis  mhiisters 
:he  local  parlia- 

onally  rcsponsi- 
Lhe  prerogative 
lie  is  bound  to 
d  welfare  of  the 
)f  his  ministers, 
And,  should  he 
issolution  of  an 
ice  of  his  minis- 
ps  to  give  e fleet 
the  time  being 
d  assembly  ;  al- 
the    governor, 
ation  of  office, 
ght  to  proceed 
nstances,  unless 
r  advisers,  who 
the   act;    and 
lieving  that  an 
result  in  an  ap- 
olicy  which,  in 
at  a  dissolution 

of  all  questions 


rOSITION  AND  FUNCTIONS  OF  A  GOVERNOR  REVIEWED.     580 

■wherein  a  oonstiiutional  governor  may  see  fit  to  difler 
from  his  ministers,  the  declared  intention  of  the  (jueen 
that  "  her  Majesty  has  no  desire  to  maintain  any  system 
of  policy  among  her  North  American  subjects  which 
opinion  condennis,"  — a  [)rinciple  whicii  isecjually  aj)pli. 
cal)le  to  every  self-govei-ning  colon}',  and  which  has 
been  freely  conceded  to  them  all,  —  rec[uires  that  tlie 
final  verdict  of  the  people  in  parliament  i:  be  ac- 

cepted as  conclusive;  and  that  the  governo  lUst  be 
prepared  to  accept  an  administration  who  \>ill  give 
effect  to  this  verdict,  or  else  himself  surrender  to  the 
sovereign  the  charge  with  which  ho  has  been  entrusted, 

12.  It  is  inexpedient  and  objectionable  in  principle 
that  a  constituticmal  governor  should  take  any  part  in 
controversies  between  the  legislative  chambers  in  the 
colony  upon  questions  of  privilege,  or  concerning  the 
relative  powers  of  the  two  houses  under  the  constitu- 
tion, so  long  as  the  ri<j!:lits  of  the  Crown  are  not  involved 
in  such  disputes.  If  he  should  ultimately  see  fit  to  dis- 
solve parliament  with  a  view  to  the  determination  of 
protracted  legislative  disputes,  it  must  be  clearly  seen 
that  he  intervenes  for  the  purpose  of  mediation,  and  as 
an  appeal  to  the  arbitration  of  the  people,  and  not  as 
helping  one  house  against  the  other. 

13.  In  questions  of  an  imperial  nature,  wdierein 
the  reputation  of  the  British  Crown  is  concerned,  or 
the  general  policy  of  the  empire  is  involved,  —  as,  for 
example,  in  the  administration,  by  a  governor,  of  the 
prerogatives  of  mercy  or  of  honour ;  or  the  reservation, 
nnder  the  royal  instructions,  of  certain  bills  which  had 
passed  both  houses  of  the  local  parliament,  for  the  sig- 
nification of  the  queen's  pleasure  thereon,  —  it  is  the 
duty  of  a  governor  to  exercise  the  power  vested  in  him, 
in  his  capacity  as  an  imperial  officer,  without  limitation 


Verdict  of 
tlir  |ii'()l)lu 
imi^t  pru- 
vail. 


Non-ill  tor- 
I'crciKJO 
lu'twt'en 
two 


Tmpori.al 
(questions. 


*»  Lord  John  RurspH's  despatch     1870;  Canada  Assem.  Jouru.  1841, 
to  Governor  Thomson,  of  Oct.  14,     appx.  B.  B. 


m 


Tlcsponsi- 
bility  of 
local  mi- 
nisters 
thereon. 


11 


590     PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

or  restraint.  Nevertheless,  upon  such  occasions,  a  consti- 
tutional governor  should  afford  to  his  ministers  full  know- 
ledge of  his  intentions,  and  an  opportunit}^  of  tendering 
to  him  whatever  advice  in  the  premises  they  may  de- 
sire to  offer ;  albeit  the  governor  is  bound,  by  his 
instructions  and  by  his  obligations  as  an  imperial 
officer,  to  act  upon  his  own  judgment  and  responsi- 
bility, whatever  may  be  the  nature  of  the  advice 
proffered  to  him  by  his  ministers.  In  all  such  cases, 
the  responsibility  of  the  local  ministers  to  the  local 
parhament  would  naturally  be  limited.  They  would 
be  responsible  for  the  advice  they  gave,  but  could  not 
strictly  be  held  accountable  for  their  advice  not  having 
prevailed.  For,  "  if  it  be  the  right  and  duty  of  the 
governor  to  act  in  any  case  contrary  to  the  advice  of 
his  ministers,  they  cannot  be  held  responsible  for  his 
action,  and  should  not  feel  themselves  justified  on  ac- 
count of  it  in  retiring  from  the  administration  of  public 
affairs."  ° 

But,  according  to  constitutional  analogy,  no  such 
right  should  be  claimed  by  the  governor,  except  in 
cases  wherein,  under  the  royal  instructions,  he  is  bound 
Ois  an  imperial  officer,  to  act  independently  of  his  mi- 
nisters. And  if  his  discharge  of  this  duty  should  be 
felt,  at  any  time,  as  a  grievance,  either  by  his  own 
advisers  or  by  the  local  parliament,  it  would  be  a  rea- 
sonable o-round  for  remonstrance  or  neo-otiation  with 
the  imperial  government ;  but  it  could  not,  meanwhile, 
absolve  the  governor  from  his  obligations  to  the  queen, 
under  the  royal  instructions.  It  is,  nevertheless,  sup- 
P'jsable,  in  an  extreme  case,  that  the  local  parliament 
might  assume  the  right  of  censuring  a  ministry  for 
advice  given  upon    an    imperial  question,  or  because 


°  Lord  Carnarvon's  view  of  the  stated  in  the  text;  cited  in  Canada 
position  of  a  responsil)]!!  ministry  in  Sess.  Papers,  1876,  no.  IIG,  p.  82. 
a  colony,  under  the   circumstances     And  see  ante,  pp.  255-202. 


i 


COLONIES. 

dons,  a  consti- 
ters  full  know- 
y  of  tendering 
they  may  de- 
)Ound,   by  his 

an   imperial 

and  responsi- 

of  the   advice 

all  such  cases, 

's  to  the  local 

They  would 
but  could  not 
dee  not  having 
id  duty  of  the 
I  the  advice  of 
onsible  for  his 
ustified  on  ac- 
L-ation  of  public 

dogy,  no  such 
nor,  except   in 
ns,  he  is  bound 
ntly  of  his  mi- 
utv  should  be 
er  by  his  own 
ould  be  a  rea- 
eo-otiation  with 
lot,  meanwhile, 
IS  to  the  queen, 
vertheless,  sup- 
3cal  parliament 
a  ministry  for 
ion,  or  because 

xt;  citefl  in  Canada 
876,  no.  110,  p.  82. 
)p.  '255-2(32. 


POSITION  AND  FUNCTIONS  OF  A  GOVERNOR  .    i;  VIE  WED.     591 

they  did  not  resign  upon  a  particular  occasion  when 
their  advice  was  not  followed. ^ 

14.  While  it  is  objectionable  in  principle,  and  of 
rare  occurrence  in  practice,  that  a})peals  should  be 
made  to  the  Imperial  Parliament,  in  cases  of  difference 
between  a  governor  and  the  colonial  executive  or  legis- 
lature, over  which  he  presides,  or  has  presided,  —  so  as 
to  lead  to  the  renewal  in  the  British  Parliament  of  local 
political  contests,  —  yet  the  authority  of  the  Imperial 
Parliament  to  discuss  all  questions  affecting  the  interests 
of  any  portion  of  the  empire,  the  lionour  of  the  Crown, 
or  the  welfare  of  her  Majesty's  subjects  in  any  part  of 
the  globe,  and  to  advise  the  Crown  upon  the  same,  is 
unquestionable ;  and  a  governor  or  ex-governor  of  a 
British  province  must  never  lose  sight  of  his  responsi- 
bility, not  merely  to  the  Crown  in  council,  but  likewise 
to  both  houses  of  the  Imperial  Parliament,  by  whom  he 
is  liable  to  be  censured  or  impeached  for  misconduct  in 
olBce.'' 

15.  In  the  absence  of  definite  instructions,  or  posi- 
tive law,  it  is  the  duty  of  a  constitutional  governor  to 
be  guided  upon  all  questions  that  may  arise,  or  matters 
that  may  be  submitted  to  him  in  his  official  capacity, 
by  the  usage  of  the  Crown  in  the  mother  country; 
which  he  should  endeavour  to  ascertjun  and  to  imi- 
tate, so  far  as  may  be  consistent  with  his  position  and 
responsibility  as  a  colonial  governor. 

16.  Finally,  inasmuch  as  all  local  parliaments  or  pro- 
vincial legislatures  in  the  empire  are,  within  their  a.s- 
signed  jurisdiction,  absolute  and  supreme,  save  only  as 


Responsi- 
bility to 
Iinptrial 
Parlia- 
ment. 


British 
practice. 


P  See  a  precedent  of  tliis  kind, 
but  which  did  not  lead  to  the  resig- 
nation of  ministers,  ante,  p.  200. 

■«  See  nnl<\  pp.  3:],  34;  Earl 
Grey,  Hans.  Deli.  vol.  ciii.  p.  1280; 
Mr.  Ghidstone,  ihiil.  vol.  civ.  p.  3.')(!; 
Case  of  the  (Jovernor  of  Hrifi-^l^ 
Guiana,  ibid.  vol.  cvii.  p.  1)30.     Do- 


bates  in  Parliament  upon  the  con- 
duct of  Governor  Eyre,  of  Jamaica, 
in  1800  and  1807;  of  (Jovernor  Dar- 
ling, of  Victoria,  in  1808;  of  Go- 
vernor Hennessey,  of  IJarbadoe.s,  in 
1870;  and  of  (Jovernor  Hartle  Frere, 
of  tlie  Cape  of  Good  Hope,  in  187D. 


f     I 


<}•', 


Constitu- 
tional 
fiiiictions 
of  a  go- 
vernor. 


Kights  of 
the  Crown 
in  a  limit- 
ed nion- 
arcliy. 


And  un- 
der parlia- 
nu'iitary 
govern- 
ment. 


592       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

respects  the  constitutional  control  of  the  Crown,  it  fol- 
lows that  the  governor  in  every  colony  or  province 
is,  within  the  limits  of  his  commission  and  delegation, 
entitled  to  be  accredited  with  similar  rights,  privileges, 
and  responsibilities  to  those  which  appertain  to  the 
sovereign  in  the  parent  state.  Moreover,  the  neces- 
sary and  lawful  functions  of  a  governor,  who  is  the 
representative  and  personal  embodiment  of  the  monar- 
chical principle  in  a  British  colony  under  parliamentary 
government,  and  who  administers  the  authority  of  the 
Crown  within  the  same,  are  neither  diminished  nor  re- 
strained by  reason  of  the  gradual  emancipation  of  the 
colony  from  imperial  control  in  the  regulation  of  its 
internal  affairs. 

The  authority  herein  claimed,  on  behalf  of  a  constitu- 
tional governor,  is  that  which  indefeasibly  belongs  to 
the  English  Crown  in  the  political  system  of  the  mother 
country :  not,  be  it  observed,  the  authority  exercised 
of  old  times  by  the  personal  government  of  sovereigns 
ruling  despotically,  with  no  one  directly  accountable  to 
parliament  for  their  actions  ;  but  that  tempered  form 
of  royal  supremacy,  limited  and  defined  by  law,  and  by 
those  maxims  of  the  constitution  which  owe  their  origin 
to  the  (so-called)  revolution  of  l''i88.  For  that  revolu- 
tion was  no  uprising  of  a  democracy  bent  on  destroy- 
ing existing  institutions:  it  was,  on  the  contrary,  a 
legal  settlement  by  Parliament  of  the  relative  powers 
in  the  state ;  a  settlement  which  guaranteed  to  the 
nation  the  inestimable  advantages  of  a  constitutional 
monarchy,  combined  with  the  freedom,  elasticity,  and 
responsibility  whicli  appertain  to  a  ministerial  execu- 
tive ruling  under  parliamentary  government. 

In  conferring  '•  responsible  government "  upon  her 
colonies,  it  was  the  design  of  Great  Britain  to  convey 
to  them  as  far  as  possible  a  counterpart  of  her  own 
institutions.     By  this  system,  it  was  intended  that  the 


E  COLONIES. 


POSITION  AND  FUNCTIONS  OF  A  GOVERNOR  REVIEWED.     593 


3  Crown,  it  fol- 
\y  or  province 
ind  delegation, 
rhts,  privileges, 
.pertain  to  the 
(ver,  the  neces- 
or,  who  is  the 
t  of  the  monar- 
r  parliamentary 
Luthority  of  the 
ninished  nor  re- 
icipation  of  the 
egulation  of  its 

[ilf  of  a  constitu- 
sibly  belongs  to 
in  of  the  mother 
[lority  exercised 
nt  of  sovereigns 
y  accountable  to 
tempered  form 
by  law,  and  by 
owe  their  origin 
|For  that  revolu- 
ent  on  destroy- 
the  contrary,  a 
relative  powers 
laranteed  to  the 
a  constitutional 
elasticity,  and 
inisterial  execu- 
ment. 

ent"  upon  her 
ritain  to  conve}' 
^art  of  her  own 
tended  that  the 


vital  elements  of  stability,  impartiality,  and  an  enlight- 
ened supervision  over  all  public  affairs  should  be 
secured  as  in  the  mother  country,  by  the  well-ordered 
supremacy  of  a  constitutional  governor,  responsible  only 
to  the  Crown  ;  whilst  the  freedom  and  intelligence  of 
the  people  should  be  duly  represented  in  the  powers 
entrusted  to  an  administration  co-operating  with  the 
Crown  in  all  acts  of  government,  but  likewise  respon- 
sible to  parliament  for  the  exercise  of  their  authority. 

The  administration  or  cabinet,   as  has  been  justly  posponsi- 
remarked  by  Mr.  Gladstone,  "  stands  between  the  sove-  H'"'^' !'? 

11  T  i'i  1  11  1  tlio  cabi- 

reign  and  the  parliament,  and  is  bound  to  be  loyal  to  net. 
both." '  It  may  not  separate  itself  from  the  Crown 
lest  it  should  degenerate  into  a  ministerial  oligarchy, 
swallowing  up  those  rights  of  the  monarchy  in  the 
body-politic  which  are  the  eminent  safeguards  of  politi- 
cal liberty  and  of  national  honour.  But  it  should  be 
equally  mindful  of  the  loyalty  and  deference  due  to 
the  Crown  as  of  the  responsibility  owing  to  parliament. 
It  is  in  the  just  recognition  of  both  responsibilities  that 
ministerial  authority  under  parliamentary  government 
is  freed  from  the  encroachment  and  contamination  of 
corrupt  influences,  and  made  conducive  to  the  prosperity 
and  progress  of  the  commonwealth. 

In  conclusion,  let  me  recall  the  seasonable  words  of  Forbear- 
caution  contained  in  Lord  John  Russell's  despatch  to  mlJJera-'* 
the  governor-general  of  Canada,  of  Oct.  14,  1839,  - —  *'""  •'^'- 
a  despatch  which  has  been  termed   "  the  charter  of  suntiai. 
responsible   government,"  as   it  was  the  first  official 
communication  to  introduce  that  system  into  a  British 
colony :     "  Every  political  constitution  in  which  differ- 
ent bodies  share  the  supreme  power  is  only  enabled  to 
exist  by  the  forbearance  of  those  among  whom  this 
power  is  distributed.     In  this  respect,  the  example  of 


ill  < 


!!!' 


'  Gleanings  in  Past  Years,  vol.  i.,    England,  its  People  aud  Polity,  voL 
quoted  witii  comments  in   Escott's    ii.  p.  113. 

38 


694       PARLIAMENTARY  GOVERNMENT  IN  THE  COLONIES. 

England  may  well  be  imitated.  The  sovereign  using 
the  prerogative  of  the  Crown  to  the  utmost  extent,  and 
the  House  of  Commons  exerting  its  power  of  the  purse 
to  carry  all  its  resolutions  into  immediate  effect,  would 
produce  confusion  in  the  country  in  less  than  a  twelve- 
month. So  in  a  colony,  the  governor  thwarting  every 
legitimate  proposition  of  the  Assembly,  and  the  As- 
sembly continually  recurring  to  its  power  of  refusing 
supplies,  can  but  disturb  all  political  relations,  embarrass 
trade,  and  retard  the  prosperity  of  the  people.  Each 
must  exercise  a  wise  moderation.  The  governor  must 
only  oppose  the  wishes  of  the  Assembly  where  the 
honour  of  the  Crown  or  the  interests  of  the  Empire  are 
deeply  concerned ;  and  the  Assembly  must  be  ready 
to  modify  some  of  its  measures  for  the  sake  of  har- 
mony and  from  a  reverent  attachment  to  the  authority 
of  Great  Britain." ' 

These  counsels  of  moderation,  though  immediately 
addressed  to  a  popular  assembly  about  to  assume  en- 
larged powers  under  a  new  constitution,  are  equally 
applicable  to  all  parties  and  public  men  who  are  invited 
to  assist  in  the  working  of  a  machine  so  delicate,  so 
complex,  and  so  carefully  balanced,  as  parliamentary 
government  in  the  colonies. 


■  Canada  Assem.  Jouvn.  1841,  appx.  B.  B.     And  see  Merivale  on  Colo- 
nization, ed.  18G1,  p.  658.    Gladstone's  Gleanings,  vol.  i.  p.  245. 


COLONIES. 


vereign  using 
it  extent,  and 
r  of  the  purse 
)  effect,  would 
:han  a  twelve- 
warting  every 
and  the  As- 
er  of  refusing 
ons,  embarrass 
people.     Each 
governor  must 
)ly  where  the 
he  Empire  are 
[uufet  be  ready 
3  sake  of  har- 
3  the  authority 

h  immediately 
,  to  assume  en- 
on,  are  equally 
who  are  invited 
so  delicate,  so 
parliamentary 


ee  Merivale  on  Colo- 
.  i.  p.  245. 


INDEX. 


ADM 

A  DMINISTRATION.  —  5'cc  Cabinet. 
-^  Adiiiiiiistnitor  of  a  goverumunt,  91. 
Africa.  —  Sec  South  Africa, 
Agents-general,  184. 
Agriculture,  legislation  on,  in  Canada, 

327. 
Albert,  H.  R.  H.  Prince,  6,  9. 

—  — ,  Martin's  Life  of,  8  n,  22  n,  23. 
Aliens. —  Sec  Naturalization. 
Amnesty  proclamations,  267. 
Ai^ieals  to  Crown  in  council,  220. 
Archbishops. — See  Ecclesiastical  prece- 
dence. 

Archibald,  Lieutenant-governor,  389, 
395. 

Army  and  Navy.  —  Sec  Military  and  na- 
val matters. 

Assent,  royal.  —  Sec  Bills;  Provincial 
legislation. 

Assessment  laws  in  Canada,  376,  379. 

Assessment  on  runs  in  New  South 
Wales  151. 

Attorney-General,  a  political  or  non- 
political  otHue,  45.  —  Sec  also  Mi- 
nister of  Justice:  Mowat,  Mr.  Oliver. 

Auchterarder  case,  191. 

Australia,  responsible  government  in, 
44,  64. 

—  imperial  control  over  colonial  legis- 
lation tlierein,  151. 

—  ecclesiastical  matters  in,  307-311. 
—  Sec  Chinese  immigration  ;  Upper 
House  ;  and  the  several  colonies  of 
Australia. 

Australian  Colonies  Duties  Act,  196. 


■OALDWIN,  Mr.  Robert,  56,  141. 
-^  IJuukruptcy  law  in  Canada,  376. 
Bannerman,  Sir  A.,  448. 
Beach,  Sir  M.  Hicks,  on  Letellicr  ca.sc, 

411. 
Despatch  on  Victoria  dispute, 

614. 


BLA 

Beach,  Sir  M.  Hicks,  Despatch  on  Lord 
Dulferin,  531. 

Beaconsrield,  Lord,  7. 

Belmore,  Governor,  on  prerogative  of 
mercy,  258. 

on  unauthorized  expenditure,  436. 

on  appointing  legislative  coun- 
cillors, 450. 

Berry,  Mr.  Graham,  510,  512,  515, 
523. 

Bills,  royal  assent  to,  given  or  with- 
held by  governor,  130. 

method  of  giving,  131. 

when  reserved,  132. 

previous  consultation  with  lo- 
cal law  otticers,  134. 

with    imperial   law   officers, 

ibid. 

discretion  in  giving  or  refus- 

ing,  137. 

given  against  ministerial  ad- 
vice, 457. 

—  second  veto  of  the  Crown  thereon, 

137. 

—  passed  by  Canadian  legislatures.  — ■ 

See  Provincial  legislatures  in  Ca- 
nada. 
Bishops,  why  styled  "  my  lord,"  238. 
—  Sec  Ecclesiastical  matters  ;  Eccle- 
sia.stical   precedence  ;    Ecclesiastical 
titles. 
Blachford,  Lord,  70  n. 
Blake,   Mr.  Edward  (minister   of  jus- 
tice  in   Canada),      on    commissions 
and  instructions  of  Canadian  gover- 
nors, 78. 

mission  to  England,  80. 

on  extradition  of  olfendcn's,  207. 

on  the  prerogative  of  nicn'V,  270. 

on  powers  of  provincial   legisla- 
tures, and   dominion  control, 
335-340,  372. 
on  commissions  of  Canadian  lieu- 
tenant-governors, 393. 


n  m 


596 


INDEX. 


BOW 

Bowen,    Sir  G.    F.,    as   governor   of 
Queensland,  66,  574. 

present   proUered  him,  in  New 

Zealand,  123. 
refuses   consent   to  currency  le- 
gislation in  Queensland,  152. 

to  unauthorized  expenditure 

in  Victoria,  495. 
objects  to  illegal  dismissals  there- 
in, 4i)7,  506. 

complained     of     by   Legislative 

Council,  497. 

reproved   by  secretary  of  state, 

;>U7,  511. 

appointed  governor  of  Mauritius, 

511,  516. 
refuses  a  dissolution  to  the  Staf- 
ford ministry,  542. 
his  honourable  career  as  a  gover- 
nor, 574. 
Brand,  Rt.  Hon.  H.,  562. 
Brassey,  Mr.  T.,  302  n. 
British  Columbia,  remonstrates  against 
dominion  railway  policy,  166. 

legislative       acts       disallowed, 

194. 

and  the  treaty  of  Washington, 

202  n. 

coast  defences,  303. 

enters   Canadian    confederation, 

388.  —  Sec  also,  Chinese   im- 
migration ;    Gray,    Mr.    Jus- 
tice. 
British  North  America  Act,  of  1867, 
transfers  powers  from  Queen  to  go- 
vevnor-geueral,  27,  328. 

appointment   of    senators 

under,  164. 

confers  "exclusive"  powers 

of  legislation,  189,  326. 

on   legislation    concerning 

aliens,  218. 

new    constitution    under, 

325-343. 

confederated       provinces, 

326,  388. 

on  agriculture,  education, 

and  immigration,  327. 

relation  between  dominion, 

and    ])rovinciaI  authori- 
ties, 327,  343. 
dominion  government  con- 
trols   ])rovincial    legisla- 
tion, 328-345. 

precedents,  846-358. 

disallowance  of  ])rovincial 

ac.'ts,  371. 

legislative    powers   under, 

judicially  interpreted,  375 
-387. 


CHI 


Britisli  North  America  Act,  powers  of 
lieutenant-governors,395. 

—  their  removal  from  olfice, 

405-413. —  Sec  also.  Lieu- 
tenant-governors. 
Brown,  Senator  G.    Negotiates  a  treaty 
at  Washington,  201. 

appointment  and   resignation  of 

Brown-Dorion  ministry,  529. 


CABINET,  its  position  and  powers, 
18,  42,  593. 

—  composition  of,  in  different  colonies, 

43-45. 

—  ministers,  their  precedence,  229.  — 

Sec   also.  Executive  C^ouncillors  ; 

Ministers  ;  Ministerial. 
Cairns,  Governor,  154. 
Campbell,  Sir  A.,  407. 
Canada,    responsible    government    in, 
54. 

—  its  position  as  a  dominion,  78,  83. 

—  imperial  control  over  dominior.  le- 

gislation, 139-151. 

—  control  exercised  by  courts  of  law, 

37.5-387. 

—  copyright  legislation,  147. 

—  fiscal  and   conmiercial    legislation, 

142,  181-184. 

—  prerogative  of  mercy  in,  268-274. 

—  military  administration,  282. 

—  ecclesiastical  matters,  305-312,  316. 

—  See  also,  Blake,  Mr.  E.;  British 
North  America  Act;  Extradition; 
Governor-general  of  Canada;  Great 
Seal  ;  Indians  ;  Lieutenant-gover- 
nors of  jiroviTices  in  Canada;  Na- 
turalization ;  Provincial  Govern- 
ments; Provincial  legislation;  Se- 
nate of  Canada;  Territorial  govern- 
ments in  Canada;  Treaties;  United 
States. 
Canada   Pacific   Railway  and    British 

Columbia,  166. 
Canadian  statesmen,  honours  conferred 

upon,  232,  240. 
Canterbury,  Lord  (J.  IT.  ^Manners  Sut- 
ton),   as  governor  of  Victoria,  108, 
120,  491,  539. 
Cap(?  of  Good    Hope,    responsible  go- 
vernment in  the,  69. 

commission   to   governor, 

72,  oj  n. 
. —  Kaffir  war,  and   ministe- 
rial difficulty,  284-295. 
Cartier,  Mr.  G.  E.,  232. 
Cauchon,  Lieutenant-governor,  458. 
Chief  Justice  in  a  colony,  acts  as  ad- 
ministrator, 91. 


rica  Act,  powers  of 
iuiut-govuriiois,395. 
Miioval  from  office, 
13.— -S'tfcalso.Lieu- 
t-goveniors. 
Negotiates  a  treaty 

!01. 

and   resignation  of 

•ion  ministry,  629. 

3sition  and  powers, 

in  different  colonies, 

precedence,  229.  — 
■c'utive  Councillors  ; 
[inisterial. 
154. 
407. 
lie    government    m, 

1  dominion,  78,  83. 

)1  over  dominion  le- 

-151. 

id  by  courts  of  law, 

lation,  147. 
imercial    legislation, 

ncrcy  in,  268-274. 
istration,  282. 
atters,  305-312,  316. 
ake,  Mr.  E.;  British 
;a  Act;  Extradition; 
era]  of  Canada;  Great 
5  ;  Lieutenant-gover- 
inces  in  Canada;  Na- 
Provincial  Govern- 
mcial  legislation;  Se- 
a;  Territorial  govern- 
rida;  Treaties;  United 

lailway   and    British 

;n,  honours  conferred 

J.  H.  Manners  Sut- 
01-  of  Victoria,  108, 

ope,    responsible  go- 

n,  69. 

iiission   to   governor, 

war,  and   ministe- 
dillicnlty,  284-295. 

.,  232. 
.ant-govornor,  458. 
a  colony,  acts  as  ad- 


INDEX. 


697 


CHI 


DUR 


Chief  Justice,  his  precedence,  229. 

Chinese  immigration  into  Queensland, 
154-158. 

into   other  Australian   colonies, 

155,  158. 

into  New  Zealand,  158. 

into  British  Columbia,  159,  377. 

into  dominion  of  Canada,  159  ii. 

into  United   States  of  America, 

160. 

Church  of  England,  subject  to  the 
Crown  and  to  the  law,  304. 

—  iu  Canada,  305,  317. 

in  other  colonies,  306-314.  — 

Sec  also,  Ecclesiastical  pre- 
cedence ;  Ecclesiastical  ti- 
tles ;  Koyal  supremacy. 

Church  of  Rome.  —  See  Roman  Catho- 
lic ;  Royal  supremacy. 

Church  of  Scotland.  —  Sec  Presbyte- 
rian Church. 

Civil  list  in  the  colonies,  174. 

Civil  servants.  —  See  Public  officers. 

Clergy  reserves  in  Canada,  305. 

Coasting  trade  of  colonies,  179,  187. 

Colenso  ease,  229  n.,  307. 

Colomb,  Capt.  J.  C,  303  n. 

Colonial  government,  old  and  new 
methods  of,  24,  25.  —  Sec  also  Pro- 
vincial governments  ;  Responsible 
government. 

Colonial  logislation.  —  See  Legislation  , 
Provincial  legislation. 

Commaniler-in-chief  of  colonial  forces, 
279.  —  Sec  also,  Smyth,  Sir  E.  S. 

Copyright  h^gislation  in  Canada,  147. 

Correspondence.  —  See  Despatches. 

Courts  of  law,  control  and  interpret 
colonial  legislation,  219-225,  365, 
375.  —  See  also.  Supreme  Court. 

Courts-martial,  275,  280. 

Crown,  its  constitutional  functions,  5, 
28,  430. 

—  its  supremacy  in  ecclesiastical  mat- 
ters, 304-318.  —  See  also.  Impe- 


rial control 
ters ;  Sovereign. 


Legislation  ;  Minis- 


Currency  legislation   in  Canada,   142, 

182. 
—  in  Queensland,  152. 
\„iistoms  duties,  under  Imperial  Acts, 

171.  — i'cc  also,  Tariffs. 


T^ARLING,  Sir  Charles,  his  govem- 
-*-^     ment  in  Victoria,  103. 
censured  ami  dismissed  from 

office,  105. 
he  i)ro tests  against  dismissal, 

107. 


Darling,  Sir  Charles,  is  popular  in  the 
colony,  108. 

— is  pensioned,  and  dies,  119  n. 

Darling,    Lady,  grant  to,   by  Victoria 

parliament,  1 09. 
disai)pioved  by  home  go- 
vernment, 110. 

proceediiigs  thereon,  112. 

is  pensioned  after  her  husband's 

death,  U9  u. 
Deceased  Wife's  Sister  Bill,  disallowed, 

161. 
Defence  of  the  colonies,  295-303. 
Denison,    Governor  Sir  W.,    is   repri- 
numded  l)y  colonial  secretary,  100. 

his  firmness  on  other  occasions, 

105  n,  448. 

irregular   proceeding  in   a  land 

grant,  454. 

present  to  him  by  Van  Diemcn'a 

Land,  122. 
Desjiatches  to  and  from   colonial  go- 
vernors, 93,  582. 

—  when  presented  to  local  parliament, 

93-99. 

—  confidential,  93,  95. 

on  the  Victoria  "dead-lock,"  97, 

120. 
Differential  duties,  180,  182,  196,  202. 
Disiiliowance  of  colonial  enactments, 
137-161. 

—  of  provincial  acts.  —  See  Provincial 

Legislation. 

Dissolution  of  Parliament,  prerogative 
of,  13. 

when  and  how  to  be  exercised, 

525. 

colonial  preceden*-?,  528-.')69. 

rules  governing  the  same,  570. 

conditionally   g  -anted,    548, 

572. 

Divorce  Bills,  to  be  reserved  by  a  go- 
vernor, 132 

cxce{)t  in  Canada,  132  n. 

disallowed,  160. 

Dorion,  Chief  Justice,  Sir  A.  A.  384. 
See  also,  Brown,  G. 

Draper,  Chief  Ju.stice,  45  n,  190  v,  368. 

Duiierin,  Earl  of  (goveriior-goneral  of 
Canada),  speech  in  British  Colum- 
bia, 167. 

action  in  Lepine's  case,  269. 

speech  at  Halifax,  443  n. 

administration     in     Canada, 

444-448,  581. 

his  j)ublic  addresses,  583  n. 

Duffy,  Sir  C.  Gavau,  asks  for  a  dis- 
vsolution  and  is  refused,  539. 

Durham,  Earl  of,  report  on  affairs  of 
British  North  America,  55. 


■/ef^mmmnH/m 


598 


INDEX. 


EAS 


GOV 


■!    '■■ 


■pAST  INDIES,  receipt  of  presents 
■*-^     by  olticials  in,  foiljidtlen,  124. 

—  —  trt'iily-making  power  in,  193. 
law  concerning  pardons  in,  252 

n.  —  Sec  also,  Wales,  Prince  oF. 
Ecclesiastical  matters  in  the  colonies, 
304-318. 

—  precedence  in  the  colonies,  228,  236. 

—  titles  in  the  colonies,  238. 

in  the  mother  country,  314. 

Edinburgh,  H.   li.   H.,  the   Duke  of, 

visit  to  Australia,  11"). 

Education  in  Canada.  —  See  British 
North  America  Act  ;  New  Bruns- 
wick School  Act  i  Prince  Edward 
Island  School  Act. 

Election  petitions  trial,  in  province  of 
Quebec,  224. 

validity  of  dominion  legisla- 
tion thereon,  383. 

Elgin,  Earl  of,  58-60,  579. 

Escheats  and  foileitures  in  Canada,  400. 

"Exclusive"  powers,  under  British 
North  America  Act,  189,  326. 

Executive  Council.  —  See  Cabinet ; 
Governor  in  Council  ;  Privy  Coun- 
cil for  Canada. 

Executive  Councillors,  their  title,  in 
and  out  of  office,  230,  231.  —  aScc 
also,  Ministers. 

Expenditure  of  public  money.  —  See 
Sup[»ly. 

Extradition  of  offenders,  203. 

law  in  Canada,  204-211. 

in  Australia,  206. 

recent  treaties,  208,  211. 

royal  conuuission  on,  210. 

Lamirande  case,  211. 

Extra-territorial  jurisdiction,  143, 192«. 

Eyre,  Governor,  591  ii. 

I:;^EDFRAL  SYSTEM,  in  British 
colonies,  404.  —  See  also,  British 
North  America  Act ;  Provincial  Go- 
A'crninents. 

Fergusson,  Governor.  Giants  a  disso- 
lution under  protest  of  parliament, 
538. 

Fisher,  Mr.  Justice,  368  n. 

Fournier,  Mr.  Justice,  370,  383,  386. 

Fox,  Sir  W.  578. 

Freeman,  Mr.  E.  A.  53,  461,  472, 
527  n. 

French  duty  on  Canadian  ships,  193  n. 

Frere,  Sir  Bartle,  his  administration  in 
South  Africa,  72,  99,  284-295. 

GALT,  Sir  A.  T,  on  Canadian  tax- 
ation, 181. 


Gait,  Sir  A.  T.,  resident  minister  for 
Canada,  185. 

conducts  trade  negotiations  with 

France  and  Spain,  202. 

receives  honours  from  the  Crown, 

232, 

Gardiner's  case,  in  New  South  Wales, 
264. 

German  settlers  in  Canada.  —  See  Na- 
turalization. 

Gladstone,  Mr.  W.  E.    On  the  Queen,  8. 

quotations  from  his  writings,  22, 

315  7(,  593. 

Goodhue  Estate  Act,  364  m,  368. 

Governor,  colonial,  powers  under  the 
old  system,  24. 

apjiointed  and  controlled  by  the 

Crown,  76. 

his  precedence,  228. 

commission  and  instructions,  26, 

31,  35,  70,  77-90,  92,  253. 

term  of  .service,  90. 

absence  how  supplied,  91. 

removal  from  ottice,  99. 

his  salary  and  i)ension,  580  n. 

censured  by  imperial  govern- 
ment or  parliament,  99,  101, 
104,  507,  511.  —  See  also,  Ini» 
perial  Parliament. 

proposed  censure  of,  in  his  colo- 
ny, 41,  289,  454,  455,  553. 

functions    and  authority   under 

parliamentary        government, 
28-41,  68,  460,  574-594. 

personal    rc.enonsibility    to    the 

Crown  and  Parliament,  and  to 
courts  of  law,  33,  76,  591. 

not  jiersonally  accountable  in  hia 

colony,  41,  585. 

Ms  political  neutrality  and  im- 
partiality, 59,  571,  575,  585. 

his  duty  in  disputes  between  the 

two  houses,  443,  490,  501,  525, 
534,  572,  580. 

remonstrates     with    Legislative 

Council   for  giving  leadership 
to  a  ])rivate  member,  484. 

must  always  adhere  to  law,  40, 

104,  432-460. 

may  not  act  without  advice,  336, 

585. 

may  reject  advice  of  ministers,     , 

and  dismiss  his  ministry,  40,^ 
63,  420,  446,  448,  453,  586. 

previous  consent  to  acte  of  go- 
vernment and  legislation,  153, 
434,  586. 

non-interference  in  routine  mat- 
ters, 440. 

or,  in  local  concerns,  431, 433. 


A 


:n 


INDEX. 


599 


'sident  minister  for 

85. 

(le  nogotiations  with 

il  Spain,  202. 

iuvs  from  tlie  Crown, 

.  New  South  "Wales, 

1  Canada.  —  See  Na- 

K.    On  the  Queen,  8. 

rom  his  writings,  22, 

3. 

ct,  364  Ji,  368. 

I,  powers  under  the 

nd  controlled  by  the 

ice,  228. 

and  instructions,  26, 

I,  77-90,  92,  253. 

ice,  90. 

•  supjilied,  91. 

n  ottice,  99. 

nd  i)ension,  580  n. 

)y    imperial    govcrn- 

parliament,  99,  101, 

511.  —  See  also,  Im- 
I'liament. 

nsure  of,  in  his  colo- 
59,  454,  455,  553. 
.nd  authority  under 
itary        government, 
,  460,  574-594. 
ipponsibility    to    the 
d  Parliament,  and  to 
law,  33,  76,  591. 
Ily  accountable  in  his 
1,  585. 

neutrality  and  im- 
,  .59,  571,  575,  585. 

disputes  between  the 
;s,  443,  490,  501,  525, 

580. 

IS  with  Legislative 
for  giving  leadei-ship 
itc  member,  484. 

s  adhere  to  law,  40, 

■460. 

;  without  advice,  336, 

advice  of  ministers,?, 
liss  his  ministry,  40,^ 
i46,  448,  453,  586. 
)nsent  to  acte  of  go- 
;  and  legislation,  153, 

ence  in  routine  mat- 

:al  concerns,  431, 433. 


GOV 

Governor,  colonial,  non-interference, 
except  to  maiiivaiu  the  law,  or  to 
protect  the  peopl .«,  68,  432-440,  495, 
506,  586. 

gives  or  withholds  assent  to  bills 

and    to    administrative    acts, 
432,  441,  455.—  Sec  also.  Bills. 

appeals   to   Imperial    authority, 

41,  162. 

consults     law    officers    of     the 

Crown.  —  Sec  Law  Officers. 

not    to    accept    presents.  —  Sec 

Presents. 

decides  ([uestions  of  precedence, 

234. 

administers  prerogative  of  mercy, 

251-274. 

issues    amnesty    proclamations, 

267. 

his  duty  in  military  and  naval 

matters,  274-293. 

his  reserved  jwwcrs,  432. 

theii  beneficial  exercise, 

459,  592. 
powers  in  relation  to  local,  par- 
liament, 406. 

constitutional  discretion  to  grant 

or  refuse  a  dissolution  of  par- 
liament,    545-547,     570-573, 
588. 
—  —  his  sjx'cches  and  despatches,  582, 
583  ^^. —  Sec  also.  Despatches; 
Minutes  ;     and    sec    Imperial 
questions  ;  Ministerial  respon- 
sibility. 
Governor  in  Council,   their  collective 
authority,  37,  341. 

business  before  them,  38. 

Governor-general  of  Canada;  his  com- 
mission and  instructions,  80. 

his  salary,  144,  580  n. 

his  precedence,  228. 

his  office,  580. 

his  r'[''>t  to  appoint  queen's 

couns,  \  241-246. 

whether    he   may   act    inde- 

])endeutly  of  ministers  in 
dealing  with  provincial  le- 
gislation, 337-345.  —  See 
also.  Provincial  legisla- 
tion. 
his  supremacy  over  the  pro- 
vinces, 388,  403. 

how  exercised,  404. 

Granville,  Earl,  6. 

Gray,  Mr.  Justice  J.  H.,  159,  190. 

Great  Seal,  of  Canada,  247. 

for    Canadian     provinces,    247, 

2.50,  401.—  See  also.  Nova  Zoo- 
tia. 


IMP 

Grey,   Earl,  on  jjarliamentary  goverii- 

nieut,  12,  58,  60. 
on   New  Zealand  governments, 

320. 
Grey,    Sir    George,    reprimanded    for 

certain  despatches,  lUl. 
protests  against  grant  of  imperial 

honours  in  a  colony,  239. 
action  concerning  New  Zealand 

defences,  300. 
asks  governor  to  veto  a  bill  passed 

by  both  Houses,  456. 

asks    for  a  dissolution,   and   ia 

twice  refused,  544-547. 
denies  governor's  right  to  refuse 

a  dissolution,  545. 
is  allowed  a  dissolution  by  an- 
other governor,  548. 

is  defeated  and  resigns,  550. 

attempts   to  keep  new   premier 

out  of  the  House,  551. 
behavas  irregularly  to  Governor 

Kobiuson,  552, 
Gwynne,  Mr.  Justice,  194  n,  327,  386. 


TTAMMOND,  Mr.  E.,  powers  to  co- 
-^-^       lonial  commercial  agents,  200  7t. 
Hovrisoii,  Chief  Justice,  343. 
Head,  Governor  Sir  E.,  and  the  Browu- 

Dorion  ministry,  529. 
Henry,  Mr.  Justice,  383,  386. 
Hincks,  Sir  F.  109  n,  306  n. 
Honours  and  titular  distinctions  from 
the  Crown,  225. 

granted  to  colonists,  226. 

conferred  on  Canadian  states- 
men, 232,  240. 
by  the  Prince  of  Wales  in  In- 
dia, 241  n. 

conferred    by  the   Crown    in 

self-governing  colonies,  239. 
House    of   Commons  of  Canada,    ad- 
dresses the  Queen  on  extradition,  209. 

on  naturalization,  216,  217. 

on  New  Lrunswick  School 

Act,     350.  —  Sec    also, 
Sj)eaker;  Supply. 
House  of  Commons  (Iniperial),  its  su- 
premacy in  the  state,  15,  21,  589.  — 
See  also  Imperial  Parliament. 
Hunt,   Louisa  (of  Tasmania),  case  of, 

266. 
Hypothetical  cases  and  conditions,  572. 


IMMIGRATION  into  Canada,  legis- 
lation upon,  327.—  Sec  also,  Chi- 
nese imnii<{ration. 
Imperial  control,  maintenance  of,  over 


600 


INDEX. 


'    ,: 


•/.* 


IMP 

Belf-govcniiiig  colonics,  27,  34,  62, 
71,  70,  87,  172,  189. 
Imperial  control  over  New  Zealand  pro- 
vincial legislation,  321. 
over  South  Africa  local  legisla- 
tion, 323. 
relinquished  over  provincial   le- 
gislation in  Canada,   27,  332, 
340-358. 

with  a  certain  proviso,  359. 

lin)icrial  guarantee  of  colonial  loans, 

lt)5. 
Imperial  interposition  in  colonial  tJ- 
fairs,  when  justiliiible,  161,  173,  359. 
Imperial  Parliament,  its  supremo  au- 
thority, and  reserved  powers  of  legis- 
lation, 34,  168,  188,  192. 

its  wisdom  in  action  and  debate, 

428. 

discusses  the  conduct  of  colonial 

governors,  62,  100, 107,  109  n, 
119,  293,  691. 

legislation  all'ecting  the  colonies, 

189  n,  310. 

legislates  subject  only  to  its  own 

discretion,  191. 
Imperial  questions,  duty  of  a  governor 

ill  relation  to,  34,  41,  589. 
Iiiiliaus  and  Indian  lands  in  Canada, 

193  )i,  390. 
Indian  treaties  in  Canada,  193. 
Insolvency  laws  in  Canada,  376. 
Instructions   to  governors,   a  imrt   of 
constitutional    law,    31    «.  —  See 
also,  (iovernor ;  Governor-General  of 
Canada ;    Lieutenant-Governors    in 
Canada.  » 

JAMAICA,   responsible    government 
in,  74. 

—  its  constitution  changed,  75,  173. 

—  conduct  of  Governor  Eyre,  591  n. 
Jervois,  Major-General  Sir  W.  F.,  on 

colonial  defence,  298-301. 

proceedings  as  Governor  of  South 

Australia,  299,  483. 

Jesuits  in  British  dominions,  316. 

Jolv,  Mr.  H.  G.,  his  administration, 
406-414. 

asks   for  a  dissolution,   and   is 

refused,  565-569. 

resigns  office,  570. 

Judges,  empowered  to  act  as  adminis- 
trators, 91. 

—  their  precedence,  229,  230. 

—  their   duty  in   criminal   trials  and 

pardons,  252-254. 

—  their   lemoval  from   office,  418.  — 

Src  also.  Courts. 
Judicial  Committee.  —See  Privy  Coun- 
cil. 


LIE 


"  [ZING  can  do  no  wrong,"  1,  2. 
-*^     —  subject  to  the  law,  1.  —  See 
also,  Crown ;  Sovereign. 


LASII,  Mr.  Z.  A.,  on  provincial  le- 
gislation, 371. 
Laiiiininde  extradition  case,  211. 
Law.  ■ —  Sec  Governor  ;  King. 
Law  Oliicers  of  the  Crown  (Colonial), 
consulted  by  the  governor,  46,  134, 
496.  —  See  also,    Attorney-General  ; 
Minister  of  Justice. 
(imperial)   consulted  by   a  go- 
vernor, 134,  347,  365. 

their  opinion    sought    by  local 

government  or  legislature,  135. 
not  to  be  given  to  private  per- 
sons, 136. 
or  to  an   opposition    in   parlia- 
ment, 136. 
Leader  of  government  business.  —  See 

Ujiper  llouse. 
Leeward  Islands,  75. 
Legislation,  colonial,  controlled  by  the 
Crown,  34,  125-161. 

disallowed,  127. 

if  "  repugnant "  to  imperial  law, 

133,  138,  219. 
supervised  by  imperial  authori- 
ties, 138. 

interiueted    and    controlled    by 

courts  of  law,  219-225. 

local  )  gilts  res))ecting,  126,  129, 

219.  —  Sec    also,      Provincial 
Legislatures. 

—  (Australian)  imperial  control  over, 

151-161. 

—  (Canadian)   imperial   control   over, 

139-151.  —  Sec  also,  Canada. 

—  (Provincial,  in  Canada)  the  Queen 

in  council  claims  no  jurisdiction 
over,  342-358. 

saving  only  reserved  rights  of  the 

Crown,  359.  —  See  also.  Pro- 
vincial legislation. 
Legislative     Council.  —  See    Senate  ; 

Sui)i)ly  ;  Upper  Hou.se. 
Lejtiiie's  case  in  Canada,  269. 
Letellier,  Lieutenant-governor,  his  case, 

405-425,  457. 
his  iettisr  to  Toronto  Reform  As- 
sociation, 458  11. 
Lieutenant-governor  in  a  colony,  91. 

his  precedence,  228. 

Lieutenant-governors  of  provinces  in 
Canada,  their  jnecedence,  228. 

their  title,  231. 

their  commission,  362,  389. 

their  tenure  of  office,  390,  414. 

their  limited  powers,  391-402. 


INDEX. 


601 


,  on  provincial  ic- 


•erial  control  over. 


LIE 

Lieutenant-governors  of  provinces  in 

Canada,  as  rPi)rnseiitative8  of 

the  Crown,  3!12-402. 
their   responsible  advisers,   399, 

4.18. 
may  be  dismissed  at  discretion, 

40.5,  411,  419. 
instructioTis  for  their  guidance, 

3(52,  389. 
their  relation  to  tlie  provincial 

lefjislaturcs,  329,  391. 

give  royal  usseiit  to  bills,  329,  362. 

reserve  bills  for  govenior-geuor- 

al's   consideration,    330,    303, 

397. 
witliliold  assent  from  bills,  394- 

397. 
rule  as   to   their  receiving  pre- 

.sents,  124. 
may  not  appoint   queen's  coun- 

.sel,  241. 
judicial    decisions    as    to    their 

powers,  400. 
responsible  to  the  governor-gen- 

fc.-vl  in   council,  or  dominion 

e.\ec"tivc,  402-407,  41.3,  42.'). 
removal    from    oflico    (Letellier 

case),  405-427. 

reasons  justifying,  416,  422. 

to  be  initiated  by  dominion 

executive,  417. 
shonld  not  be  a  party  ques- 
tion, 421,  426. 
Local  self-government.  —  See  Respon- 
sible government. 
Lome,  Marquis  of,  appointed  governor- 
general  of  Canada,  84. 
his  commission  and  instructions, 

87,  271. 
bestows  orders  of  distinction  in 

Canada,  240. 
dismissal  of  Lieutenant-governor 

Letellier,  408-413. 
Lytton,  Sir  E.  Bulwer,  letter  to  Go- 
vernor Bo'.ven,  574. 


"lyTACDONALD,  Sir  John  A.,  his  ad- 

-"-'-  ministrations  in  Canada,  48,  408, 
536. 

British  Commissioner  at  Wash- 
ington, 200. 

honours  conferred  on  him,  232. 

on  powers  of  governor-general  in 

Canada,  342  n. 

on   lieutenant-governors,   391  n, 

399  n. 

on  the  Letellier  case,  407-422. 

Macdonald,  Mr.  J.  Sandfield,  471. 

McGee,  T.  D'Arcy,  459  n. 


MIN 

Mackenzie  administration,  in  Canada, 
48,  408,  445. 

Magistrates,  appointment  of,  68. 

Manitoba,  Legislative  Council  abo- 
lished, 364. 

—  disallowance  of  statutes,  371. 

—  (jiitered  confederatit)n,  388. 

—  ministerial    vacancies,    458.  —  Sea 

also,    Archibald,     Lieutenant-go- 
vernor ;    Morris,    Lieutenant-go- 
vernor. 
Maori  ministers  in  New  Zealand,  44. 

—  war  in,  101,  279. 

Marine  electric  telegraph  comi)any, 
148. 

Maritime  jurisdiction  in  Canada,  188. 

Marriage  licenses  in  Canada,  401. 

Martin,  I'eter,  274. 

May,  Sir  T.  Erskine,  on  conditional 
dissolutions,  559. 

Members  of  colonial  legislatures,  their 
precedence,  230. 

Merchant  shipping  legislation,  149, 
178-180,  189  ?i. 

French    duty    on    Canadian 

shipping,  193  n. 

Mercyj  prerogative  of,  how  adminis- 
tered in  colonies,  251-274. 

—  special  law  in  India,  252  n. 

—  in  Upper  Canada,  268. 

—  how  administereci  in  self-governing 

colonies,  25.'")-258. 

—  Australian  precedents,  258-207. 

—  Canadian  precedents,  268-270. 

—  new  instructions  for  Canada,  271. 

—  on  banishment  as  a  condition  of  par- 

don, 263,  273. 

Meredith,  Chief-Justice,  384. 

Meriv.ale,  Herman,  570. 

Military  and  Naval  matters  in  the  colo- 
nies, 274-303. 

correspondence,  102,  276. 

precedence,  228-230. 

defence.  295-303. 

royal    prerogative   controlled 

by  ministers,  16. 

Military  college  in  Canada,  297  n. 

Militia  force  in  Canada,  282. 

Minister  of  Justice  in  Canada,  his  duty 
concerning  provincial  legislation, 
361.  —  See  also,  Blake,  Mr.  E. 

in   other  colonies,    44.  —  See 

also  Liw  Officers  of  the 
Crown. 

Ministerial  oligarchy,  19,  593. 

Ministerial  respon.sibility  and  control, 
in  self-governing  colonies,  30,  39, 
94,  584-593.  —  See  also,  Uesponsiblo 
grvernment. 

in   presenting    despatches 


602 


INDEX. 


''i1 


Mm- 

or  governor's  memorandums  to 
ptiriiiiineiit,  \)i-\)d. 
Ministeriul  rcsponsihility  and  control, 
wlien  n  governor  may  act  in- 
depundi'ntly  of,  335,  51'0. 

surrendortid  in  tlie  Letdlicr 

case,  417. 
Ministers  in  relation  to  the  Crown,  12, 
14,  15-19,  585. 

—  resignation  or  dismissal  of,  12,  15, 

19,  587. 

—  responsible  for  all  acts  of  the  Crown, 

1«,  17,  94,  587, 

oven  those  done  in  a  ministerial 

interregnum,  17  n. 

—  their  duty  to  the  Crown,  19,  593. 

—  their  precedence,  229. 

—  vacate  seats  in  parliament  on  accept- 

ing office,  except  in  certain  colo- 
nies. 47. 

—  rfH'gu  after  defeat  at  general  elec- 

tion, 52. 

—  complaints  against,  how  disposed  of, 

52.  —  See  also,  Ministerial  respon- 
sibility; Speaker  of  Lower  House; 
Upper  House. 

Ministries,  colonial,  how  composed,  44. 

brief  existence,  47. 

except  in  Canada,  48. 

Minutes  between  a  governor  and  his 
ministers,  when  presented  to  parlia- 
ment, 94-99,  553. 

Molteno  ministry,  its  misconduct  and 
dismissal,  284-293. 

Monarchical  institutions  under  parlia- 
mentary government,  5,  28,  430, 
432,  459  n,  584,  592. 

Money.  —  Sec  Supply. 

Morris,  Lieutenant-governor,  364,  366. 

Mowat,  Mr.  Oliver,  attorney-general, 
363  n,  368  n. 

Mulgrave,  Governor,  refuses  a  dissolu- 
tion to  his  ministers,  537. 


"NATURALIZATION  of  aliens,  214. 

■^^  —  of  German  settlers  in  Canada, 
21. '5-21 8. 

—  federal  and  provincial  legislation  in 
Canada,  concerning  aliens,  218. 

Naval.  — ■  See  Military  and  Naval. 

Navigation  laws,  178. 

New  Brunswick,  controversy  about  the 
School  Acts,  346. 

■ Orange  Society  in,  356. 

extent  of  provincial  legislation, 

371. 

fisheries,  379. 

lieutenant-governor  refuses  as- 
sent to  bills,  395. 


OAT 

New  Brunswick,  confederation  q\  na- 
tion, 451. 

jiroiiibitory  liquor  law,  453,  528. 

Newfoundland,  telegraph  legislation, 
149. 

—  not  in  the  Canadian  dominion,  388. 

New  South  Wales,  irregular  expendi- 
tures therein,  436. 

proposals  to  ndd  to  Legisla- 
tive Council,  449. 

proposals    to   make   it  an 

elective  body,  451,  522. 

land  grants  in,  454. 

Governor  Robinson  and  condi- 
tional dissolutions,  557-5C3. 

ministerial   changes  in  1878, 

563. 

New  Zealand,  responsible  government 
in,  64. 

provincial  governments,  320. 

new    connuission     to    governor, 

83  ?i. 

complaints  against  executive  go- 
vernment concerning  Maori 
war,  101. 

claims    of   railway    contractors, 

166  n. 

Episcopal  Church  in,  311. 

ap})ointment   of  Mr.  Wilson  to 

Legislative  Council,  455. 

proposal     to    make     Legislative 

Council  elective,  5S3. 

ministry  complain    tf  Governor 

Normanby,  455. 

Governor  refuses  to  veto  a  bill, 

though  advised  by  ministers, 
457. 

ministerial  defeats  and  changes, 

542-552. 

powers  of  two  Houses,  476. 

in  matters  of  supply,  478.  —  See 

also,  Chinese  immigration  ; 
Grey,  Sir  G. ;  Maoris;  Robin- 
son, Sir  H. 

Nova  Scotia,  responsible  government 
in,  60. 

appeals  to  theTVown  against  con- 
federation, 163. 

Great  Seal  case,  246. 

provincial   legislation,   and  acts 

disallowed,  371. 

powers  and  privileges  of  legisla- 
ture, 468. 

enlarged  by  statute,  469. 

governor  refuses  to  grant  a  disso- 
lution to  ministry,  537. 

OATHS  to  Witnesses  Bill,  in  Canada, 
di.sallowed,  146. 
another  act  passed,  147. 


INDEX. 


603 


confederation  qv  ?s- 

iquor  law,  453,  528. 
lugmph   lugiulation, 

dian  duminion,  388. 
,  irregular  oxpeiuli- 
6. 

to  add  to  Legisla- 
uneil,  449. 
als    to   make   it  an 
live  body,  451,  622. 
is  in,  454. 

Robinson  and  condi- 
lissoliitions,557-563. 
ii.  changes  in  1878, 

)onsiblo  government 

jvernments,  320. 
ssion    to    governor, 

igainst  executive  go- 
concerning     Maori 

railway    contractors, 

iuirch  in,  311. 

t  oi"  Mr.  "Wilson  to 

e  Council,  455. 

k    make     Legislative 

ective,  r)23. 

niplain   of  Governor 

y,  455. 

fuses  to  veto  a  bill, 

Ivised  by  ministers, 

lefeats  and  changes, 
2. 

ro  Houses,  476. 
f  supply,  478.  —  See 
inese     immigration  ; 
G. ;  Maoris;  Robin- 

)onsible  government 


by  statute,  469. 
uses  to  grant  a  disso- 
[ninistry,  537. 

esses  Bill,  in  Canada, 

46. 

ct  passed,  147. 


OF? 

Officers.  —  See  Naval    and    Military  ; 

Public  odicers. 
Ontario,  powers  and  privileges  of  the 

legislature,  365,  468-471. 

—  single  legislative  eliainber,  471. 

—  extent  of  legislation  and  acts  disal- 

lowed, 371. —  Six  also,  Goodluie 
Estate  Act  ;  Mowat,  Attorney- 
general;  Orange  Societies;  Provin- 
cial legislation. 

Orange  Socitities,  in  New  Brunswick, 
356. 

in  Ontario,  357,  396. 

in  Prince  Edward  Island,  357  n. 


"  PACIFIC  scandal  "  case,  444. 

-*-     Palmer,  Sir  R.,  120. 
Papal  claims  in  Great  Britain,  314. 

in  Canada,  316-:il8. 

Pardon.  — See  Mercy,  Prerogative  of. 
Parkes,  Sir  H.,  260,  450,  564. 
Parliauieut,  the  term  deliued,  461. 

—  contrasted  with  legislatures,  462. 

—  to   be  i>rouiptly   convened    after  a 

change  of  ministry,  530,  543,  549, 
572. 

—  verdict  of,  must  ultimately  prevail, 

15,  21,  63,  420,  589. —Sec  also. 
Dissolution  of  Parliament;  Impe- 
rial Parliament ;  Privileges  >d 
powers  ;  Two  Houses. 
Parliamentary  government, in  England, 
1-23. 

its  extension  to  the  colonies,  24 

et  scq. 

its  adai)tation  to  an  independent 

community,  28.  —  See  also,  Re- 
sponsible government. 
Patterson,  case  of,  269. 
Political  questions,  to  be  settled  in  par- 
liament, 51. 
Precedence,  in  the  colonies,  227-240. 

—  in  Canada  and  elsewhere  compared, 

228-231. 

—  in  South  Australia,  233. 

—  of  wives  of  public  officers,  235. 
Prerogative  governnu'nt,  2,  3. 
Presbyterian  Church  in  Scotland,  191. 

'in  Canada,  312,  354. 

Prtisents  not  to  be  accejited  by  a  go- 
vernor, or  his  family,  109,  123. 

• —  or  by  ex-governors.  111. 

—  not  to  be  given  by  a  governor.  111. 

—  should  not  be  ottered  to  an  ex-go- 

vernor   without     leave    of    the 
Crown,  120, 
precedents,  122,  123. 

—  forbidden  to  be  received  by  any  ser- 

vants of  the  Crown,  124. 


PRO 

Presents,  ca.se  of  (,'anadian  lieutenant^ 

governors,  124. 
Prime  minister,  the  choice  of  the  Crown, 

17.  —  See  Ministers. 
Prince  Kdward   Island,  extent  of  pro- 
vincial legislation,  371. 
enten.'d  the  dominion  of  Ca- 
nada, 388. 

School  Act,  351. 

Land  Acts,  352. 

Uraugt!  Lodge  therein,  357  »• 

Privileges  and  powers   of  local    parlia- 
ments, and  of  provincial  legislatures, 
365,  465. 
Privy  Council  in  Canada,  42. 

precedence  of  privy  councillors, 

22!t. 

their  title,  231.—  See  also.  Go- 

vernor  in  council. 

in   England,   ajjpeals  to   (or  to 

judicial    committee    thereof), 
220,  353. 
precedence  of  members  of  coun- 
cil, 229  71. 
Protestant  clergy  in  Canada,  305. 
Protestant   faitii,    legally   supreme   in 

the  British  empire,  313-318. 
Provincial  governments  under  control 
rf  a  central  government,  319. 

in  New  Zealaiul,  320. 

in  South  Africa,  322. 

in  Canada,  325,  388.  —  See  also, 

Governor-general  of  Canada  ; 
Lieutenant-governors  in  Cana- 
da ;  Provincial  legislation. 
Provincial  legislation,   in  dominion  of 
Canada,  —  extent  of  control  by  do- 
minion government.,  327. 

precedents,  34i;. 

New  Brunswick  School  Act,  346. 

Prince    Edward    Island    School 

Act,  351. 

P.  E.  Island  Land  Acts,  352. 

Ontario  and  Quebec  Presbyterian 

Acts,  355. 

constitutional    practice   on   tliis 

subject,  360-375. 
disallowance  of  acts  by  governor- 
general  in  council,  363, 369-37."). 
should  be  notified  to  other  lo- 
cal governments,  366. 
extent   of  disallowance  exer- 
cised since  1867,  371. 

powers  of  legislation  as  defined 

by  law  courts,  376-387. 

enacted   in    the    name    of    the 

Crown,  329. 

except  in  certain  provinces,  329  n. 

prerogative  right  of  disallowance, 

369,  396. 


I 


■V: 


604 


INDEX 


PRO 


ROT 


Provincial  legislation,  lieutenant-gover- 
nors withhold  assent  to  bills, 
394. 

reserve  bills  for  governor-ge- 
neral's consideration,  394. 

powers  of    governor-general    in 

respect  to,  331. 

how  exercised,  332,  358. 

controversy     between     imjierial 

and  dominion  governments 
thereon,  333-340. 

how  settled,  340-343. 

questions  concerning,  to  be  de- 
cided by  Canadian  government, 
344. 

unless  in  certain  cases,  359. 

lawful  powers  not  to  be  en- 
croached upon  by  dominion 
executive  or  parliament,  335, 
367,  373. 

such  powers   being   absolute 

and  supreme,343,368. —  Sec 
also,  Lieutenant-goveniors 
in  Canada ;  Supreme  Court. 

in  South  Africa,  under  control  of 

the  Crown,  323. 

Provmcial  legislatures,  in  Canada,  their 
limited  jurisdiction,  32b ;  and  see 
Queen's  counsel. 

their  privileges  and  powers,  365, 

463. 

definable  by  statute,  469. 

not  to  be  termed  parliaments, 

462. 

in  New  Zealand,  320. 

in  self-governing,  and  not  subor- 
dinate colonies,  are  local  par- 
liaments, 463. 

their  powers  and  privileges,  465- 

468. —  (S'ccalso,  Legislation,  co- 
lonial. 

Provincial  rights  in  Canada,  335,  358, 
366-373,  423,  426 

Public  expc'nliture.  —  Sec  Supply. 

Public  officers,  their  appointment  and 
removal,  36,  61,  65,  68. 

to  take  no  part  in  politics,  36. 

excessive  and  unlawful  removals 

in  Victoria,  494,  503,  506. 

disft])j)roved  by  imjierial  go- 
vernment, 508,  511.  —  See 
also,  Precedence ;  Presents. 


QUEBEC  PROVINCE,  powers  and 
privileges  of  legislature,  365,  468- 
470,  471  n. 
—  —  extent  of  legislation,  and  acts  dis- 
allowed, 371.  —  >SV't' also,  Joly, 
Mr.;    Letellier,  lieutenant-go- 


vernor; Provincial  legislation ; 
Provincial  legislatures ;  Pro- 
vincial  rights. 

Queen's  counsel,  their  appointment  in 
Canada,  241-246. 

Queensland,  responsible  government  in, 
66. 

Legislative  Council  in,  474,  522. 

—  &calso,  Bowen,  SirG.;  Chi- 
nese immigration ;  Currency. 


"OAMSAY,  MR.  JUSTICE,  208  n. 

-'-^    Reciprocity.  —  See  United  States. 

Resident  minister  for  Canada,  185. 

for  other  colonies,  187. 

Resignation  of  ministry.  —  Sec  Minis- 
ters. 

Responsible  government,  introduced 
into  the  colonies,  25,  31,  38,  54-75, 
429,  592. 

in  the  Canadian  provinces,  399, 

415. 

applied  to  commercial  legislation, 

172. 

Revolution  of  1688,  2,  592. 

Richar(ls,Chief  Justice  Sir  W.,  370,468. 

Ritchie,  Chief  Justice,  386. 

Robhison,  Governor  Sir  Hercules,  his 
minute  in  a  certain  case  presented 
to  parliament,  96. 

his    exercise   of   prerogative    of 

mercy,  259. 

his  action  in  Rossi's  case,  280. 

on    appointments  to  Legislative 

Council,  450. 

on  signing  land  gnants,  454. 

grants  a  dissolution  of  parlia- 
ment to  Sir  G.  Grey,  548. 

unwarrantable    conduct    to,   by 

SirG.  Grey,  552. 

asks  imperial  advice  upon  con- 
ditional dissolutions,  557. 

Robitaille, Lieutenant-governor,  refuses 
a  dissolution  to  M.  Joly,  566. 

Rogers,  Sir  F.  —  See  Blachford,  Lord. 

Roman  Catholic  church  and  clergy,  in 
the  colonies,  rank  and  titles  of  mi- 
nisters, 228  n,  237. 

position  in  liritish  empire,  313. 

position  in  Canada,  316-318. 

Roman  Catholic  schools  in  New  Bruns- 
wick, 346. 

in  Prince  Edward  Island,  351. 

Rossi,  Captain,  case  of,  280. 

Royal  supremacy  in  ecclesiastical  mat- 
ters, in  Knglniid,  304. 

m  the  colonies,  311 ,  313. 

as  ojiposcd  to  papal  claims,  314- 

317. 


INDEX. 


605 


?incial  legislation ; 

legislatures ;    Pro- 

;s. 

ir  appointment  in 

ble  government  in, 

uncil  in,  474,  522. 
iowen.  Sir  G. ;  Chi- 
ation;  Currency. 


USTICE,  208  n. 

See  United  States, 
r  Canada,  185. 
lies,  187. 
stry.  —  See  Mi.nis- 

ment,    introduced 
25,  31,  38,  54-75, 

Ian  provinces,  399, 

mercial  legislation, 

2   592. 

ce'sirW.,  370,468. 
^e,  386. 

•  Sir  Hercules,  his 
ain  case  presented 

of   prerogative    of 

?0Rsi's  case,  280. 
nts  to  Legislative 
10. 
id  grants,  454. 

lution   of  parlia- 
G.  Grey,  548. 

conduct   to,   by 

552. 

advice  upon  con- 
iolutions,  557. 
t-govcriior,  refuses 

July,  566. 

Hiachford,  Lord. 
•ch  and  clergy,  in 

and  titles  of  mi- 

tish  empire,  313. 
iiiidii,  316-318. 
)ols  in  New  Bruns- 

ard  Island,  851. 
of,  280. 

ecclesiastical  mat- 
1304. 
,  311,313. 
papal  claims,  314- 


RUS 

Russell,  Earl.     Despatches  on  respon- 
sible government,  55,  593. 
Ryland's  case,  359. 


ST.  MICHAEL  and  St.  George,  order 
of  knightliood,  239. 

bestowed  on  Canadian  statesmen, 

240. 
Scotland,  Church  of,  disruption,  191. 

—  See  also,  Presbyterian. 
Seamen,  180  n.  —  See  also.   Merchant- 
shipping  ;  Maritime  jurisdiction. 
Second  Chamber.  —  See  Senato  of  Ca- 
nada ;  Two  Houses ;  Upper  Plouse. 
Secret  societies  in  Canada,  141.  — See 

also.  Orange  societies. 
Secretary  of  state  for  the  colonies,  his 
office  and  responsibility,  76,  90,  91. 
Secretary  of  state  for  Canada,  his  ap- 
propriate functions,  404. 
Senate  of  Camwla.     Number  of  minis- 
ters in,  48. 
appointment  of  additional  se- 
nators refused  by  the  Crown, 
164. 

precedence  of  senators,  230. 

their  title,  231. 

their  independence,  522. —  See 

also,  Upper  House. 
Separate  scihools. — ■  See  Roman  Catholic 

Schools. 
Shipping.  —  See  Merchant  Shipping  ; 

Seamen. 
Simcoe,  Lieutenant-governor,  55  n. 
Smyth,  Lieiitenant-geueral  Sir  E.  Sel- 

by,  283,  302. 
Soutli    Africa,    ipieen's   commissioner 

for,  72,  287  n,  294. 
federal  and    provincial    govern- 
ments,  322.  —  See  also,   Gape 
of  G  od  Ho))e. 
South  Australia,  new  commission  and 
instructions  to  governor,  82. 

civil  and  ecclesiastical  precedence 

in,  233-238. 

rights  of  two  Houses  in  supply, 

480. 

disputes  thereon,  481,  523.  —  Sec 

also  Australia;  Upper  House. 
Sovereign,  personally  irresponsible, 2, 17. 

—  not  a  cipher,  4. 

—  position  and    powers  under  parlia- 

mentary govcrnnient,  4,  10,  20. 
■ —  political   functi(^ns,  23.  —  Sre  also. 
Crown;  Dissohitinn  of  Parliament; 
Ministers;  Victoria,  Qniicn. 
Speaker  of  Ciipc  Assembly,  refii.ses  to 
put  an  unconstitutional  motion,  42, 
289. 


TAS 

Speaker  of  Lower  House  (Assembly, 
Commons,  or  House  of  Rei)rebuii- 
tatives),  his  precedence,  230. 

title,  231,  232  n. 

gives  a  casting  vote  on  mo- 
tion of  want  of  confidence 
in  ministers,  456,  544. 

rule  which  should  govern 

such  a  voti',  434  n,  54."». 
Speaker  of  Upper   House  (Le^islniivc 
Council,    or    Senate). — See    Upper 
House. 
Spragge,  Chancellor,  368. 
Stamp  Act  (Canadian),  377. 
Stamp  Act  (English)  of  1765,  170. 
Stock  mar,  liaron,  9. 
Strong,  Mr.  Justice,  368. 
Supply,    rights    of    both    Houses    in 
grants  of,  436,  454,  477-525,  569. 

—  governor's  duty  in  initiating  supply 

votes,  441. 

—  ought  to  be  granted  before  a  disso- 

lution of  jjarliament,  553. 

as  invariably  in  England,  557. 

though  not  ill  the  colonies,  557. 

—  dissolutions  conditional  on  giant  of 

supply,  558-563. 
Supreme  Court  in  Australia,  229  n. 
Supreme   Court    (of  Canada),    bill    to 
establish,  150. 

—  ■ —  its  jurisdiction  and  importance, 

223,  380-387. 

appeals  to,  and  from  the  court, 

224. 

precedence  of  judges,  229,  230. 

its  decision  on  queen's  counsel 

case,  245. 

on  clerical  interference  at  elec- 
tions, 317. 

on  dominion  elections  trial  act, 

383. 

on  privileges  of  local  legislatures, 

468. 

S.i|ireme  Court  in  England,  222. 

Sutton,  .T.  H.  Manners.  —  See  Canter- 
bury, Lord. 

Sydenham,  Lord,  55,  57. 


TARIFFS,      COLONIAL,    fomerly 
regulated  by  Imperial  railianient, 
168-172,  176. 

now    settled    by    self-governing 

colonies,  176,  104. 

Canadiav.  ;>iotective  tariff,  183. 

Victoria    protective   taiifl",    103, 

488. —  .SV/-  also,  Trade. 
Ta.schereau,  Mr.  .Uistice,  386. 
Tasmania,  responsible  government  in, 
44,  64. 


,  ..m 


606 


INDEX. 


TAS 


Tasmania,  powers  and  privileges  of  lo- 
cal parliament,  467. 

—  constitution  of"  upper  chamber,  474. 

—  disputes  between  two  Houses  in  sup- 

ply, 486. 

—  ministerial  changes  in,  552-556.  — 

Sec  also.    Upper  House  ;   Weld, 
Governor. 
Taxation  of  colonies  by  Imperial  Par- 
liament, 169. 

—  limitations  thereof,  172,  176. 

—  poweis  of,  possessed   by  Canadian 

provincial  legislatures,  376,  382. 
—  Sec    also,    Assessment    laws ; 
Tariffs. 
Taylor,   Mr.   Fennings,  58  w,   330  n, 

461  n. 
Territorial  governments  in  northwest- 
ern L'anada,  how  established  and 
controlled,  145,  374,  390,  —  Sec  also, 
Indians. 
Trade,  colonial,  how  regulated,  176- 
184. — See  also,  Coasting  Trade; 
Tariffs. 

—  intercolonial,  in  Australia,  195. 

—  in  British  North  America,  194. 

—  powers  of  legislation,  under  Confe- 

deration Act,  376,  382. 

—  between  British  colonies  and  foreign 

countries,  how  regulated,  199, 
200  n.  —  See  also,  Treaties  ;  Uni- 
ted Spates. 

Treaties  affecting  Chinese  immigration 
into  Britisii  colonies,  154-159. 

into  United  States,  160. 

—  affecting  colonial  trade,  180. 

—  extension    of    treaty   privileges    to 

colonics,  197. 

—  list  of,  now  in  force,  198  n. 

—  how  contracted,  192. 

—  privileges  to  Canada  in  negotiating, 

199. 

—  interpretation  and  enforcement  of, 

202.  —  Sec  also,  Extradition  ;  Na- 
turalization. 
Two   Houses   of  Parliament,  duty  of 
ministers  to  maintain  harmony  be- 
tween, 49. 
dissolution  of  parliament  to  re- 
store harmony  between,  501, 
552,  568. 

or  one  legislative  chamber,  in  the 

colonies,  471. 

advnntnges    of    a    second 

chamber,  472. 

composition  of,  in  different 

colonies,  473. 

constitutional    powers    of 

the  two  Houses,  476. — 
Src  also,  Sujiply ;  Upper 
Huuse. 


VOO 

ULTRAMONTANISM    in    Canada, 
318, 
United  States  of  America,  Chinese  im- 
migration into,  160. 

revolution,   in  1766,   168, 

170. 
independence  acknowledg- 
ed, 171. 
reciprocal  trade  with  Ca- 
nada, 184,  200, 
Upper  House,  number  of  cabinet  mi- 
nisters in,  in  various  colonies,  48-51, 

precedence  and  title  of  sjieaker, 

and  of  members,  230-232. 

whether    to    be    nominated    or 

elected,  473. 

elective   upjier  chambers    claim 

larger  powers,  480,  492,  515. 

whether  constitutional  change  is 

desirable,  521. 

on  adding  members  thereto,  in 

Canada,  164. 

in  New  South  Wales,  449, 

in  New  Zealand,  455. 

powers  and  privileges  of  an  Up- 
per House,  473  n.,  475,  476. 

leadership  of,  in  South  Australia, 

transferred  to  a  non-ofh<ial 
member,  482. —  Sec  also,  Two 
Houses :  Victoria. 


■\/'ETO,  royal.—  Sec  Bills  ;  Governor ; 
*       Legislation. 

Victoi  ia.  Her  Majesty  Queen,  as  a  con- 
stitutional soveieign,  6,  22,  583. 
—  her  own  account  of  her  position  and 

powers,  22. 
Victoria  (in  Australia).     Disputes  be- 
tween the  Two  Houses  in  1865  and 
in  1867,  103-122,  487. 

disputes  in   1877  to  1880,  489- 

525. 
rights  of  the  two  Houses  in  sup- 
ply, 480,  492,  513-515. 

appropriation   of  local  revenues 

by  an   imperial  statute,   175, 
504. 
proj)oscd  amendment  of  the  con- 
stitution, 512-525. 
despatch  thereon,  from  secre- 
tary of  state,  517. 

cost  of  governor's  olKcial  hosi)i- 

tality,  581  ?i. — &calso,  Bowcn, 
Sir    G.  ;    Canterbury,    Lord  ; 
Darling,    Sir    C.  ;      Darling, 
Lady. 
Vogcl,  Sir  J.,  agent-general  for  New 

Zenland,  185. 
political  acts,  542,  544. 


INDEX. 


607 


!7ISM    in    Canada, 

merica,  Chinese  im- 

60. 

ion,   in  1766,   168, 

idence  acknowledg- 

71. 

eal  trade  with  Ca- 

,  184,  200. 

iber  of  cabinet  mi- 

ious  colonies,  48-51. 

tid  title  of  s] leaker, 

libers,  230-232. 

be    noniiiiated    or 
3. 

er  chambers    claim 
ers,  480,  492,  515. 
titutioiial  change  is 
521. 

lenibers  thereto,  in 
)4. 

juth  Wales,  449, 
.•aland,  455. 
jiivileges  of  an  Up- 

473  n.,  475,  476. 
,  in  South  Australia, 
I    to   a    non-official 
82. —  See  also,  Two 
'ictoria. 


WAIi 

WALES,  H.  R.  H.    the  Prince  of, 
'  »     bestows  the  order  of  the  Star  of 

In(!ia,  241  n. 
Want  of  confidence,  proposed  against 

a  new  ministry,  533,  551.     See  also, 

Speaker  of  Lower  House. 
Watson,  Mr.  S.  J.,  461  n. 
Weld,    Governor,    of   Tasmania.     On 

unauthon..>;d  expenditure,  454. 
grants  a  dissolution  to  one  mi- 
nistry, 652. 


WOL 

Weld,  Governor,   refuses  a  dissolution 

to  another  ministry,  554. 
West  Indies.     Kesponsible  government 

in  the,  74.  —  See  also,  Jamaica. 
V/ilson,  Mr.  Justice,  402. 
Winslow  extradition  case,  207. 
Wolseley,       Lieutenant-general      Sir 

Garnet,    in    South  Africa,   287   n, 

294. 


THE  END. 


Jec  Bills  ;  Governor  ; 

sty  Queen,  as  a  con- 
ngn,  6,  22,  583. 
;  of  her  position  and 

ilia).     Disputes  be- 
ll ouses  in  1865  and 
I,  487. 
1877  to  1880,  489- 

two  Houses  in  sup- 
192,  513-515. 
1  of  local  revenues 
perial  statute,   175, 

Midment  of  the  con- 

512-525. 

thereon,  from  secre- 

state,  517. 

nor's  olHcial  hospi- 

II. — &calso,  IJowcn, 

Canterbury,    Lord  ; 

Sir    C.  ;      Darling, 

nt-general  for  New 

,  542,  544. 


University  Press:  John  Wilson  &  Son,  Cambridge. 


